Balakrishnan vs State of Kerala

Type Court Judgment Court Kerala Decided Jul 04, 2019

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Citation: sooperkanoon.com/1864314
Court: Kerala High Court
Judge: Honourable Mr. Justice B.Sudheendra Kumar
Decided On: Jul 04, 2019
Case Number: CRL.A/732/2005

Parties & Advocates

Appellant / Petitioner

Balakrishnan

Respondent

State of Kerala

Excerpt

.....curiae other present: sri.e.c.bineesh,public prosecutor this criminal appeal having been finally heard on 04.07.2019, the court on the same day passed the following: -2-judgmentthe appellant was convicted and sentenced by the court below under section 8(2) of the abkari act.2. the prosecution allegation is that on 146-1999 at about 5.30 p.m., the appellant was found in possession of 3 litres of arrack in contravention of the provisions of the abkari act.3. since there is no representation for the appellant, this court has appointed adv. smt. jinsamol as amicus curiae to argue this case.4. heard the learned amicus curiae and the learned public prosecutor.5. the learned amicus curiae has argued that since there was inordinate delay in conducting the investigation -3- and filing the final report, the appellant is entitled to benefit of doubt. the learned counsel relied on the decision of this court in krishnan h v. state [2015 (1) khc 822] to buttress his argument.6. in krishnan h (supra), this court held that the long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. in this case, the incident was on 14-6-1999. however, thewitnesses were questioned only during the month of november, 2002, which was after a period of three years and 5 months from the date of seizure of the contraband. thereafter, the final report was filed before the court onlyon 28-11-2002, after completing the investigation. no explanation was given by the prosecution for the long delay in conducting the investigation and filing the final report before the court. since there was long and unexplained delay of more than 3 years and 5 months in conducting the investigation and filing the final report,the same is, no doubt, fatal to the prosecution as held in krishnan h (supra). in the said -4- circumstances, the appellant is entitled to benefit of doubt. in the result, this criminal appeal stands allowed setting aside the conviction and.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941 AGAINST THE ORDER/JUDGMENT IN SC 135/2003 of ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI DATED 12-04-2005 APPELLANT/S:
BALAKRISHNAN AGED 1 YEARS S/O VELU, EDAVAPARAMBIL VEEDU, AKAMPADAM AMSOM,, PAINGAKODU DESOM, NILAMBUR TALUK,, MALAPPURAM DISTRICT. BY ADV. SRI.T.K.AJITH KUMAR RESPONDENT/S: STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, NILAMBUR RANGE,, MALAPPURAM DISTRICT, BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. SMT.JINSA MOL,AMICUS CURIAE OTHER PRESENT: SRI.E.C.BINEESH,PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -2-

JUDGMENT

The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

2. The prosecution allegation is that on 146-1999 at about 5.30 p.m., the appellant was found in possession of 3 litres of arrack in contravention of the provisions of the Abkari Act.

3. Since there is no representation for the appellant, this Court has appointed Adv. Smt. Jinsamol as amicus curiae to argue this case.

4. Heard the learned amicus curiae and the learned Public Prosecutor.

5. The learned amicus curiae has argued that since there was inordinate delay in conducting the investigation -3- and filing the final report, the appellant is entitled to benefit of doubt. The learned counsel relied on the decision of this Court in Krishnan H v. State [2015 (1) KHC 822] to buttress his argument.

6. In Krishnan H (supra), this Court held that the long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, the incident was on 14-6-1999. However, the

witnesses were questioned only during the month of November, 2002, which was after a period of three years and 5 months from the date of seizure of the contraband. Thereafter, the final report was filed before the court only

on 28-11-2002, after completing the investigation. No explanation was given by the prosecution for the long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay of more than 3 years and 5 months in conducting the investigation and filing the final report,

the same is, no doubt, fatal to the prosecution as held in Krishnan H (supra). In the said -4- circumstances, the appellant is entitled to benefit of doubt. In the result, this Criminal Appeal stands allowed setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. Sd/-B.Sudheendra Kumar, Judge. Ani/ /true copy/

Same Court & Year Kerala · 2019 Same Parties Balakrishnan vs State of Kerala Same Judge Honourable Mr. Justice B.Sudheendra Kumar