Kerala High Court acquitted petitioner charged under Abkari Act due to unexplained delay by prosecution in producing seized contraband before court and failure to establish custody during delay period.
Judgments of courts below set aside; petitioner acquitted; bail bond cancelled.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 1524 of 2002 ( ) -------------------------------CRA.47/1999 of ADDL.SESSIONS COURT (ADHOC)II, KASARAGOD CC.790/1996 of J.M.F.C.-II,HOSDRUG
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
THAZHATHUVALAPPIL PRABHAKARAN,
S/O. KOTTAN, RESIDING AT KOKKAL, UDUMA VILLAGE HOSDURG TALUK.
BY ADVS.SRI.M.THAMBAN SMT.T.SUDHAMANI
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1. THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE.
2. THE STATE OF KERALA REP.BY PUBLIC
ADV. SMT. SEENA RAMAKRISHNAN – PUBLIC PROSECUTOR.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S. SIRI JAGAN, J.
Crl.R.P. No. 1524 of 2002
Dated this the 18th day of December, 2012
ORDER
This is the umpteenth time this Court is constrained to acquit an accused in a prosecution under the Abkari Act, only on the ground of delay in producing the contraband before the court and failing to explain the delay and to prove the custody of the contraband during the period from the date of seizure till the date of production of the contraband before the court.
Crl. R.P.No.1524/02 2
any evidence. After considering the evidence of the prosecution, the Magistrate convicted the petitioner and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for a period of two months. The petitioner challenged the judgment of the Magistrate before the Additional Sessions Judge, Adhoc-II, Kasaragod in Criminal Appeal No.47/1999. The Sessions Judge dismissed the appeal confirming the conviction and sentence. The judgments of the courts below are under challenge in this Criminal Revision Petition.
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the Magistrate, the seizure of the contraband was on 9.9.1996. Of course, the crime and occurrence report was produced in court on 10.9.1996, but the contraband articles and the samples were produced before the court on 11.10.1996 only. In order to ascertain whether the prosecution has offered any explanation for the long delay of one month, I went through the evidence of PW2, who is the detecting officer. In fact, he is the only official witness examined, PW1 being the mahazar witness. Absolutely no attempt was made by PW2 to explain the delay of one month in producing the contraband before the court. He has also not bothered to state as to in whose custody the contraband was, for the period from 9.9.1996 to 11.10.1996. The prosecution has not even bothered to mark the forwarding note for forwarding the sample for chemical analysis to the chemical examiner. This Court has time and again held that such defects in the prosecution case would entitle an accused for acquittal on that ground alone. See the decision of the Division Bench of this Court in Ravi . v. State of Kerala & another [2011 (3) KHC 121 and my decision in Raju v. State of Kerala [2012 (4) KHC 877]. I myself have in several decisions cautioned the prosecution against such
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4
defects in conducting the prosecution under the Abkari Act. It would be in the interest of the State, who proclaims its avowed principle at least of reducing the consumption of alcohol in the State at the roof top, to give serious attention to this unhealthy practice among Excise Officers and Prosecutors in leaving loopholes for the accused to get an acquittal on technical grounds. The only way to correct the officers is to see that whenever accused are acquitted on such technical grounds, the erring officers are brought to look, to make an example for others. With the solemn hope that at least in future the authorities concerned would wake up and do the needful to correct this practice.
The Cr.R.P. is allowed as above.
S. SIRI JAGAN, JUDGE
acd
Forward a copy of this order to the learned Director General of Prosecution, for information and necessary action.
Crl. R.P.No.1524/02 5
Crl. R.P.No.1524/02 6
3 issues framed by the court
Whether delay by prosecution in producing contraband without explanation warrants acquittal.
Whether failure to explain custody of seized articles prejudices the defense.
Whether defects in prosecution case under Abkari Act entitle accused to acquittal.
Colour shows how this judgement treated each authority
Ravi v. State of Kerala & anotherExplained¶29
Ravi v. State of Kerala & another [2011 (3) KHC 121]
Raju v. State of KeralaExplained¶29
Raju v. State of Kerala [2012 (4) KHC 877]
1 provisions across 1 enactments
THAZHATHUVALAPPIL PRABHAKARAN
THE STATE OF KERALA
S. SIRI JAGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
