High Court of Kerala allowed criminal appeal, acquitted accused under Section 55(a) of Kerala Abkari Act for importing liquor. Court held prosecution failed to prove import from outside state and suffered unexplained gaps in chain of custody and sample verification.
Conviction and sentence set aside, accused acquitted, bail bond cancelled, and appellant set at liberty.
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 V.K.MOHANAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
CRL.A.No. 1287 of 2003
[AGAINST THE JUDGMENT IN SC 79/2000 of THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-I), KASARAGOD DATED 30-06-2003]
APPELLANT/ACCUSED:
VASUDEVAN @ VASU, AGED 22 YEARS, S/O.KARIYAN, KOTTIKULAM, PALLIKKARA, KASARAGOD DISTRICT.
BY ADV. SRI.K.P.HARISH
RESPONDENT/COMPLAINANT:
STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KAHDIR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No. 1287 of 2003
Dated this the 23rd day of September, 2013
J U D G M E N T
The sole accused in Crime No.89/1999 of the Bekal Police
Station is the appellant herein and he challenges his conviction and sentence imposed on him by judgment dated 30.6.2003 in S.C.No.79 of 2000 of the court of Additional Sessions Judge (Ad Hoc-I),
Kasaraogd for the offence punishable under Section 55(a) of the Abkari Act.
the accused was found in possession of ten bottles of Original Choice Fine Whiskey, each containing 750 ml., near Kottikulam bus waiting shed on the road margin of Kasaragod-Kanhanagad public road and thus, the accused has committed the offence punishable under Section 55(a) of the Abkari Act. On completing the investigation, a report
was filed, on the basis of which S.C.No.79 of 2000 was instituted.
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During the trial of the case, Pws.1 to 3 were examined and Exts.P1 to P5 were marked. After questioning the accused under Section 313 of the Cr.P.C. and after hearing the case, the learned Sessions Judge
found that the accused is guilty under Section 55(a) of the Abkari Act and consequently, he is sentenced to undergo rigorous imprisonment for three years and to pay fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for six months. Set off is allowed. The above finding and order of conviction and sentence are challenged in this appeal.
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counsel pointed out that even according to PW3, he has not claimed that the sample bottle contained the signature of the accused. It is also contended that the contraband articles are not produced before the court and there is no compliance of Section 53 of the Kerala Abkari Act. According to the learned counsel, the finding of the court below is factually and legally unsustainable and therefore, the conviction
recorded against the appeal is liable to be set aside.
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learned counsel appearing for the appellant and the learned Public Prosecutor.
he was found in possession of the contraband articles while transporting the same. In this juncture, it is relevant to note that
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though PW3 claimed that the appellant/accused was seen stepping
down from the K.S.R.T.C.bus with a bag, he did not even question the conductor and driver of the bus from which allegedly the appellant/accused alighted. It is also relevant to note that PW1, who is the attestor of seizure mahazar, turned hostile. So, to prove the fact that the appellant was intercepted and arrested when he was transporting the contraband articles from the State outside and thereby attracted Section 55(a), absolutely there is no evidence. A learned v. Judge of this Court, in the decision reported in Narayanan Nair State of Kerala [2011(3) KLT 722], held that to prove the offence under Section 55(a) read with Rule 9, the prosecution must prove that the accused brought IMFL to State of Kerala from some place which lies outside the State. On examination of the facts and circumstances involved in the case and the evidence and materials relied on by the prosecution, in the light of the above decision, I am of the view that the prosecution has miserably failed to establish the essential
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ingredients of Section 55(a) to sustain the conviction of the appellant for the said offence.
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are said to have been taken into the custody on 11.3.1999, the same reached in the court only on 18.6.1999 and there is a delay of three months for which absolutely there is no explanation. So, the above unexplained delay has to be considered in the context, where there is no plausible and convincing evidence regarding the safety measures adopted by PW3 to keep the articles in tact. A learned Judge of this Court reported in Ravi v. State of Kerala [2011(3) KLT 353] held that the prosecution has the duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition. Besides the defect, which I pointed out about the delay in reaching the samples in the court and the failure on the part of PW3 in keeping the article in tact, it is also relevant to note that absolutely there is no description in Ext.P1 seizure mahazar, how PW3 had drawn sample and what are the safety measures adopted to keep the sample in tact. In the absence of
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any such description in Ext.P1 seizure mahazar and especially, when PW3 admitted that the signature of the accused was not obtained in the sample bottle and particularly when there is huge delay in reaching the sample as well as the contraband article in the court and when there is no evidence about the safety measures adopted by PW3 to keep the samples in tact, according to me, the prosecution version cannot be believed and the accused is entitled to the benefit of doubt, especially in the light of the decision cited supra. Therefore, the conviction recorded by the court below is set aside.
In the result, this appeal is allowed, setting aside the judgment dated 30.6.2003 in S.C.No.79 of 2000 of the court of Additional Sessions Judge (Ad Hoc-I), Kasaragod, acquitting the accused of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty.
sd/-
V.K.MOHANAN, Judge.
MBS/
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3 issues framed by the court
Whether prosecution proved accused imported IMPL from outside State of Kerala attracting Section 55(a).
Whether delay and lack of custody records deprived prosecution of burden to prove chain of custody.
Whether accused is entitled to benefit of doubt due to gaps in evidence regarding sample drawing.
Colour shows how this judgement treated each authority
Narayanan Nair v. State of KeralaReferred¶46
Narayanan Nair State of Kerala [2011(3) KLT 722]
Ravi v. State of KeralaReferred¶54
Ravi v. State of Kerala [2011(3) KLT 353]
2 provisions across 2 enactments
Vasudevan @ Vasu
State
V.K. Mohanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
