Allowed

Mathew Franco v. State of Kerala

Kerala HC28 Jul 2015Crl.MC/5013/2013

Case brief

AI extract

What is this about?

Div benched High Court of Kerala quashed criminal proceedings against the petitioner, who was the third accused in an excise case. The court held that since co-accused persons in the same fact pattern were acquitted in a final judgment due to alleged tampering, a full trial was a futile exercise.

What did the court decide?

All proceedings in Sessions Case No. 399/2011 pending before the Principal Assistant Sessions Court were quashed, to the extent applicable to Accused No. 3 (Mathew Franco).

Mathew Franco Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2015)

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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 K.P.JYOTHINDRANATH

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TUESDAY, THE 28TH DAY OF JULY 2015/6TH SRAVANA, 1937

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Crl.MC.No. 5013 of 2013 ()

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SC 1781/2009 AND SC 320/2011 of PRINCIPAL ASSISTANT SESSIONS JUDGE, KOLLAM.

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CRIME NO. 33/1998 OF KOLLAM EXCISE RANGE OFFICE

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PETITIONER/3RD ACCUSED:

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MATHEW FRANCO, AGED 48 YEARS, S/O.LAZAR FRANCO, MARIYALAYAM HOUSE, SAKTHIKULANGARA KOLLAM DISTRICT.

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BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN

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RESPONDENT/STATE & COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

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2. THE EXCISE INSPECTOR, KOLLAM EXCISE RANGE, KOLLAM-691 001.

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R1 BY PUBLIC PROSECUTOR :SMT.M G.LISHA R2 BY ADDL.D.G.P. :SRI.TOM JOSE.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5013 of 2013 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE-I: CERTIFIED COPY OF THE FINAL REPORT IN CRIME AND OCCURRENCE REPORT NO.33/98 OF KOLLAM EXCISE RANGE DATED 29.01.2007.

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ANNEXURE-II: CERTIFIED COPY OF THE COMMON JUDGMENT DATED 27.07.2013 IN SESSIONS CASE NO.1781/2009 AND SESSIONS CASE NO.320/2011.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

PA TO JUDGE

skr

K.P. JYOTHINDRANATH, J

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== == == == == == == == == == ==

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CRL.M.C.5013/2013

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== == == == == == == == == == == Dated this the 28^th day of July, 2015

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ORDER

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This petition is filed under section 482 of the Criminal Procedure Code by the petitioner, who was originally the third accused in CR.No. 33/98 of Excise Range Office, Kollam.

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The case of the petitioner herein is that, the petitioner was one among the licensees of T.S.No.62/19981999, Toddy Shop in Kollam Range. It is the further case of the petitioner that, the allegation against him is that, on 19.05.1998 at about 3.30 p.m., the Excise party conducted a search in the above referred shop. The sales man ran away from the shop. In the search, they found small sachets allegedly contained arrack. Total 110 liters of arrack was seized from the shop. Thereafter, the license was perused and

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it is found that one Baiju, Sivadasan, Mathew Franco and Margret are the licensees and a Crime as 33/1998 was registered after preparing mahasar. Sampling of the

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Crl.M.C.5013/2013 2

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contraband was also allegedly done. The licensees are arrayed as accused Nos.1 to 4 in the crime. A final charge filed against Baiju, S/o Sudhakaran, Erattukottu House, Shakthikulangara Village, M.Sivadasan, S/o Madhavan, Palamoottil House, Shakthikulangara Village, Mathew Farnco, Mariyalam House, Shakthikulangara Village, Margaret, Mariyalam House, Shakthikulangara Village by the Excise officials.

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Now the above referred Mathew Franco, approached before this Court to quash the proceedings against him on the ground that the accused Sivadasan as well as Margaret who are also standing on the same foot of the petitioner herein were faced a full trial and were acquitted by the Principal Assistant Sessions Court, Kollam, as per the Judgment in Sessions Case No. 1781/2009 and Sessions Case No. 320/2011 . It is the submission that against the said accused also, even though the offences under Sections 55(a) and (i) of the Abkari Act was evoked, they were found not guilty and acquitted for the alleged offences.

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It is the further submission that a copy of the said judgment is produced before this Court along with this petition

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Crl.M.C.5013/2013

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as Annexure 2. It is also submitted before me that in para 12 and 13 of the said judgment are relevant which are quoted

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below:

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“12. Ext P1 is the Mahasar prepared by the detecting officers at the time of the alleged seizure of the contraband. It is vehemently contended by the learned counsel for the accused that specimen impression of the seal used for sealing the samples and the contraband has not been impressed in the mahasar and in view of the unexplained delay in producing the seized article before the court tampering of the contraband and the sample cannot be ruled out and consequently prosecution case cannot be accepted.

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There is merit in the contention made on behalf of the accused. Evidently, in Ext.P1 mahasar the specimen of the seal used to seal the sample and the contraband has not been impressed. Ext. P5, Property list shows that the seized articles were not produced soon after the seizure but produced on 21.05.1998 after two days. No evidence has been adduced to show as to under whose custody the samples were during the intervening period from the time of seizure till the same were produced before the court. No explanation is offered for the delay in producing the articles to the court.”

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This aspect is also squarely applicable to the

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accused/petitioner herein.

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Heard.

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When the Sessions Court came to a conclusion

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that “ tampering cannot be ruled out and it cannot be safely concluded that what was produced before the court were the articles seized as per

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Crl.M.C.5013/2013 4

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Ext.P1 mahasar.” and acquitted on the said basis of the said finding, I feel that no purpose will be served by a full-fledged trial of the petitioner herein also. This is a matter were on a set of facts, a competent Court came to a conclusion. The

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same set of facts will be applicable to the petitioner/accused herein.

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Under such circumstances when there is no appeal

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in respect of the common judgment in S.C. 1781/2009 and S.C. 320/2011 on the file of the Principal Assistant Sessions Judge, Kollam, which became final, a full-fledged trial in respect of this petitioner will be a futile exercise. All the proceedings in Sessions Case No. 399/2013 pending before the Principal Assistant Sessions Court, Kollam which arose out of Occurance Report No. 33/1998, Kollam Excise Range is hereby quashed. It is made clear that this order will be applicable only in respect of the accused no.3 (Mathew Franco) in the crime.

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Sd/-

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K.P. JYOTHINDRANATH JUDGE

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skr

Mathew Franco v. State of Kerala

Case brief

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Mathew Franco v. State of Kerala

Case brief

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