On the death of the appellant, the Criminal Appeal abated regarding imprisonment but remained open for the fine. The High Court found the conviction sustainable and confirmed the fine while the sentence of imprisonment was abated.
Conviction confirmed; sentence of fine confirmed; sentence of imprisonment abated due to death.
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 P.BHAVADASAN
TUESDAY, THE 1ST DAY OF DECEMBER 2015/10TH AGRAHAYANA, 1937
CRL.A.No. 361 of 2006 ( )
AGAINST THE JUDGMENT IN SC 145/2003 of ADDL. DIST. & SESSIONS COURT (ADHOC) FAST TRACK III, PATHANAMTHITTA.
APPELLANT(S)/ACCUSED:
JAMAL, S/O.SHEIK MYTHEEN,
NALLEKALEEKAL VADAKKETHIL, PADINJAREKARA, POLICKAL VILLAGE, ADOOR TALUK.
BY ADVS.SRI.K.A.HASSAN
SRI.G.GOPALAKRISHNAN NAIR (EDAPPALLY)
SMT.P.SHYNI
RESPONDENT(S)/COMPLAINANT:
STATE, REPRESENTED BY THE EXCISE INSPECTOR, PATHANAMTHITTA, IN CRIME NO.26/00.
BY PUBLIC PROSECUTOR SMT. S. HYMA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P. BHAVADASAN, J.
Crl.Appeal. No. 361 of 2006
JUDGMENT
This appeal is directed against the judgment dated
1.2.2006 whereby the accused was found guilty of offence punishable under Sections 8(1)and (2) of the Abkari Act. He was convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for three months.
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Crl.Appeal.361/2006.
was present there, on seeing the excise party, ran away. The excise party examined the bottle found at the place and they were convinced that it was arrack. The excise party examined the other rooms and two bottles containing arrack were also discovered. Samples were taken from the liquid so seized. Ext.P3 is the arrest memo. He also prepared Ext.P6 mahazar. P.W.2 would say that he had sealed and labelled the sample as well as the balance contraband article. He then returned to the station and registered Crime No. 26 of 2000 as per Ext.P7 occurrence report. He prepared the property list, and had the materials produced before court. Ext.P8 is the said property list. He also filed Ext.P10 requisition for sending the sample for chemical analysis and obtained Ext.P11 report.
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Crl.Appeal.361/2006.
are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Pathanamthitta. The said court made over the case to Additional District and Sessions Court (Adhoc) Fast Track-III, Pathanamthitta for trial and disposal.
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Crl.Appeal.361/2006.
came to the conclusion that the offence has been established and therefore convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal.
“394. Abatement of appeals.- (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant :
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
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Explanation.-In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister.”
Since the sentence imposed includes fine, it could not be said that the appeal abates. None of the legal heirs have come forward to prosecute the appeal.
till produced in court.
Crl.Appeal.361/2006. 6
to have witnessed the recovery. He, however, denied his signature on the document prepared by P.W.2. Even assuming that independent witnesses turned hostile, there is nothing to doubt the version given by P.Ws. 2, 3 and 4. The court below has analysed the evidence in considerable detail and has come to the conclusion that the offence is made out. There is no reason to interfere with the conviction.
Since appellant is no more, the sentence of imprisonment abates while sentence of fine remains. Therefore, confirming the sentence of fine, this appeal is dismissed.
P. BHAVADASAN, JUDGE
sb.
2 issues framed by the court
Whether the conviction for possessing arrack under the Abkari Act is sustainable in light of the evidence.
Whether the criminal appeal abates due to the death of the appellant.
2 provisions across 2 enactments
JAMAL
STATE
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
