Appeal against conviction under the Abkari Act. High Court set aside conviction due to major discrepancies in seized contraband capacity and lack of explanation from prosecution regarding the inconsistency in the property list and seized articles.
Conviction and sentence set aside. Appellant set at large. Bail bond cancelled. Fine refunded if paid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934
CRL.A.No. 810 of 2005 ( ) ------------------------SC.54/2000 of ADDL. DISTRICT COURT (ADHOC), KOLLAM
APPELLANT(S)/ACCUSED.: ---------------------
SURENDRAN PILLAI, S/O JANARDANAN PILLAI, KUNNUMPURATHU VEEDU, KUZLIYAMVARAM, KOTTAKKERAM CHERRY, PARIPPALLY VILLAGE. BY ADV. SRI.SAJJU.S
RESPONDENT(S)/COMPLAINANT.: ---------------------------
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ds
N.K. BALAKRISHNAN, J.
Crl. A. No: 810 of 2005
Dated this the 3rd day of September, 2012
J U D G M E N T
The appellant challenges the conviction and sentence passed against him for offence punishable under section 55(a) of Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay Rs.1,00,000/- as fine. The appellant contends that the Court below has not appreciated the evidence correctly and as such the conviction and sentence passed against him are unsustainable.
11.11.1998 at about 6.00 pm, when PW4 and others were on patrol duty they found the appellant carrying a black can of 5 litres capacity containing in it 4 litres of arrack. The appellant was arrested then and there. The contraband articles were seized. In a bottle of 375 ml capacity, sample of 300 ml was taken. The sample bottle and the black can
Crl.A. No: 810/2005
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containing the remaining arrack were sealed and labelled in the presence of the witnesses. The occurrence report was prepared. The accused was produced before court. The mahazar and the contraband articles were also produced before Court.
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holding that the properties and the property list might have reached the Court prior to 02.12.1998. That reasoning is acceptable; but there is another snag.
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stated that 300 ml was taken in a bottle of 375 ml capacity. Of course ,that omission or contradiction may not be so vital, if, evidence on other points are found acceptable. But the inconsistency in the articles produced before the Court and the contraband articles made mention of in Exts. P1 and P2 would assume importance. It was tried to be explained by the Prosecution stating that while preparing the property list it might have been wrongfully written. It is seen that it was singed by the Police officer. Prosecution should have examined the Station-writer or other officer who prepared the property list to explain the inconsistency. That was not done. Though an omnibus statement was given by PW4 that sample bottle and the black can were affixed with the label, it was not shown to the witnesses when examined to state precisely that the said label containing the signature of the accused is there on the can. Had such evidence been adduced, then certainly the prosecution could have explained stating that the discrepancy in the capacity of the
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can alone may not come to the rescue of the accused. But that sort of evidence was also not adduced. Therefore, the inconsistency as referred to above would cast doubt in the mind of the Court as to the correctness of the articles produced before Court. That benefit must go to the accused.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jjj
3 issues framed by the court
Whether the conviction is sustainable in light of inconsistencies regarding the capacity of the seized arrack can.
Whether the discrepancy between seized articles and those produced in court casts doubt on the correctness of the evidence.
Whether the failure to examine the station writer regarding the property list warrants acquittal.
1 provisions across 1 enactments
Surenđran Pillai
State of Kerala
N.K. Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
