The High Court allowed the criminal appeal against conviction and sentence under Section 58 of the Abkari Act. The court set aside the indictment due to lack of independent corroboration, small quantity seized, and defects in the seizure and custody chain of the arrack.
Conviction and sentence under Section 58 of the Abkari Act set aside; 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 P.D.RAJAN
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
CRL.A.No. 1585 of 2004 (C)
AGAINST THE JUDGMENT IN SC 408/2003 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 20-09-2004
APPELLANT/ACCUSED:
SURESH, S/O ACHUTHAN, VADAKKUMPATT, THOZHIYOOR DESOM, POOKODE VILLAGE CHAVAKKAD.
BY ADVS.SRI.RAJIT SRI.RANJIT BABU
RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM.
BY ADV.SURESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.D.RAJAN, J.
Crl. Appeal No.1585 of 2004
Dated this the 19th day of January, 2016
JUDGMENT
This appeal is directed against the conviction and sentence in S.C.No.408/2003 of the Third Additional Sessions Judge, Fast Track-I, Thrissur under Section 58 of the Abkari Act. The charge against the appellant is that on 15.07.2000 at 6 pm, appellant was found in possession of 360 ml of arrack on the east of Panchayath well near Nayadi Colony in Thozhiyur Desom of Pookkod Village. The Preventive Officer, Excise Range Office, Chavakkad detected the offence and registered a crime. After completing the investigation, Excise Inspector, Chavakkad laid charge before Judicial First Class Magistrate Court, Chavakkad. From there, the case was committed to Sessions Court, Thrissur.
Crl.Appeal No.1585/2004 2
material objects. The incriminating circumstances brought out in evidence were denied by the accused, while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Section 58 of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of Rupees One lakh, in default, rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.
the Excise Inspector. According to PW-4, on 15.07.2001 at 6 pm, he arrived at the place of occurrence, the appellant
Crl.Appeal No.1585/2004
3
was found carrying a plastic bag. On seeing the excise party, he was frightened and tried to escape from there. PW-4 inspected the bag, detected 4 packets of arrack each containing 90 ml. He took 180 ml as sample and sealed at the place of occurrence itself. The balance arrack was also taken into custody after preparing Ext.P1 mahazar. Ext.P2 is the arrest memo, Ext.P3 is the arrest notice and Ext.P4 is the Search list. Reaching at the Excise Office, he registered a crime and occurrence report. Ext.P5 is the occurrence report. Ext.P6 is the property list. Ext.P7 is the scene mahazar and Ext.P8 is the chemical examination result. The seized articles were marked as MOs. 1 to 3. During cross examination, he admitted that the accused was arrested from the place of occurrence itself. Even though sample was taken, sample seal was not obtained in the property list and no documents were produced before court to show that the seized articles forwarded to the chemical examination lab.
Crl.Appeal No.1585/2004
4
of PW-4. He also reiterated the same version given by PW4. PW-1 also attested Ext.P1. The remaining arrack after taking sample was marked as MO-1, the plastic cover as MO-2 and the bag was marked as MO-3 in the trial court. Even though PW-1 stated that he affixed his personal seal, no documents were produced in the trial court to show that the articles were properly sealed and produced before court. The independent witnesses PWs 2 and 3 did not support the prosecution case. They are residing far away from the place of occurrence. PW-6 laid the charge before court. PW-5 is the Village Officer, who prepared Ext.P9 site plan. PW-2 admitted his signature. He is a sales man in a toddy shop and residing 5 km away from the place of occurrence. Mere production of documents itself is not sufficient to prove that the articles seized by the preventive officer was properly produced before court.
this Court held that:
“If so, it cannot be assumed that the property was
Crl.Appeal No.1585/2004 5
in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by charge of hands in a tamper-proof condition.”
In the result, conviction and sentence passed by the trial court under Section 58 of the Abkari Act is set aside and the appellant is set at liberty and the appeal is allowed.
sd/- P.D.RAJAN JUDGE
JV
1 issue framed by the court
Whether the conviction and sentence under Section 58 of the Abkari Act should be sustained given the lack of independent corroboration and legal infirmities in the seizure of arrack.
Colour shows how this judgement treated each authority
Ravi V. State of KeralaReferred¶33
Ravi V. State of Kerala (2011 (3) KLT 353)
2 provisions across 1 enactments
SURESH, S/O ACHUTHAN
STATE OF KERALA
P.D.RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
