Allowed

Dinesan v. State of Kerala

Kerala HC26 Jul 2013CRL.A/71/2008

Case brief

AI extract

What is this about?

In appeal against conviction under the Abkari Act for possession of arrack, the High Court of Kerala acquitted the appellant. The court found the prosecution case fatal due to the non-examination of the investigating officer, despite reasons alleged for his absence not being recorded in evidence.

What did the court decide?

The conviction and sentence were set aside, the appellant was acquitted, bail bonds cancelled, and any fine refunded.

Dinesan Vs State of Kerala — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935

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CRL.A.No. 71 of 2008 ( )

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SESSIONS CASE NO.510/2001 of ADDL.SESSIONS JUDGE (ABKARI ACT CASES),

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KOTTARAKKARA.

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IN CP 256/2000 of J.M.F.C.-II,KOTTARAKKARA

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APPELLANT(S)/ACCUSED:

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DINESAN, S/O. RAGHAVAN,

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PACHAYIL VEEDU, THANNIMUKKU DESOM, VELIYAM VILLAGE

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KOTTARAKARA.

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BY ADVS.DR.K.P.SATHEESAN

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SRI.K.K.GOPINATHAN NAIR

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SRI.P.MOHANDAS (ERNAKULAM)

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RESPONDENT(S)/STATE & COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY

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THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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ERNAKULAM.

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THE EXCISE INSPECTOR,

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EXCISE RANGE, CHADAYAMANGALAM-691 534.

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BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-072013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J

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Crl. Appeal No. 71 of 2008

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Dated this the 26^th day of July, 2013

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J U D G M E N T

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The accused in S.C.No.510 of 2001 of the Additional

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Sessions Court(Abkari Act Cases), Kottarakara, who stands convicted under Section 55(a) read with Section 8(1) and (2) of the Abkari Act and sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for six more months, has come up in appeal.

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The prosecution case is that, on 23.7.1999 at 7 p.m., the appellant was found in possession of 7 litres of arrack contained in a jerry can and while it was being transported by him through a public pathway situated on the northern side of the Ayoor-Kollam road near M.V.R. Cashew factory, Palamukku, Kottara, PW1, Excise Inspector of the Excise Range, Chadayamangalam and his party intercepted him and on finding that the can contained arrack, he was

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Crl. Appeal 71 of 2008

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placed under arrest and the contraband was seized through Ext.P1 mahazar, from which a sample was drawn. He took the appellant and the material objects to the Excise Officer and registered C.R.No.49 of 1999 through Ext.P2 occurrence report. The contraband and the sample were produced before court through Ext.P5 property list and requisition was filed for subjecting the sample to chemical analysis. Ext.P7 is the certificate of chemical analysis which revealed that the sample contained 32.38% by volume of ethyl alcohol. The investigation was conducted by CW3 Excise Officer who was the successor in office to PW1. CW3 laid the final report.

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On the side of the prosecution, PWs.1 to 4 were examined and Exts.P1 to P7 were marked. MOs1 and 2 were identified. After examining the accused under Section 313 Cr.P.C., he was called upon to enter on his defence as no grounds were made out to acquit the accused under Section 232 Cr.PC. On the side of the appellant, DW1 was examined. The court below found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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Crl. Appeal 71 of 2008

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Heard the learned senior counsel for the appellant and the learned Public Prosecutor. The learned senior counsel for the appellant has argued that excise officer who conducted the investigation in this case and filed the final report has not been examined and any valid explanation has not been given for the non-examination of the Investigating Officer. Secondly, it was argued that the evidence of DW1 was not at all considered by the court below. Thirdly, it was argued that the certificate of chemical analysis in this case is unworthy of acceptance as it does not contain the details of the examination and conclusions, especially when the concerned analyst who analysed the sample was not examined.

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From the evidence available on record, there is no valid explanation at all regarding the non-examination of the investigating officer. The records do not reveal as to why CW3 who conducted the investigation and filed the final report was not examined. Even though it seems that the court below has stated in the judgment that CW3 is bed ridden due to amputation of his leg, the records do not

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Crl. Appeal 71 of 2008

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reveal as to from where the court below could gather the said information which is recorded in paragraph 15 of the judgment. Even according to PW2, the investigation was actually conducted by CW3. Matters being so, the non examination of the investigating officer who conducted the investigation and filed the final report in the matter, is fatal to the prosecution case.

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Regarding the second point, it seems that DW1 has stated that the accused who is her husband has become paralytic partially and he has been undergoing prolonged treatment. According to her, even during the period of incident, he was undergoing treatment; but not as inpatient. Of course, this point as well as the next point argued by the learned senior counsel need not be considered at present as the first point was found in favour of the appellant. Matters being so, the conviction and sentence entered by the court below are bad in law, and are only to be set aside and I do so.

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In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set

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Crl. Appeal 71 of 2008

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aside. The appellant is acquitted. His bail bonds shall stand

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cancelled and he is set at liberty forthwith. The fine amount, if any, deposited by the appellant shall be refunded to him.

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Sd/- B. KEMAL PASHA, JUDGE

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ul/-

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[True copy]

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P.S. to Judge

Dinesan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dinesan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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