Allowed

Kalikkotan Thamban Nair v. State of Kerala

Kerala HC28 Oct 2016CRL.A/345/2009

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Kerala set aside the appellant's conviction and sentence under Section 8(2) of the Abkari Act. The Single Judge held that the prosecution evidence, including the seizure memo, was insufficient due to a four-year delay in investigation and the inability to cross-examine independent witnesses, as per A. Tajudeen.

What did the court decide?

Conviction and sentence set aside; appellant stands acquitted.

Kalikkotan Thamban Nair Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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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 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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CRL.A.No. 345 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN SC 354/2006 of ADDL.SESSN.COURT (ADHOC-I)KASARAGODE DATED 06-02-2009

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AGAINST THE ORDER/JUDGMENT IN CP 14/2006 of J.M.F.C.,KASARAGOD DATED 26-06-2006

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APPELLANT(S)/ACCUSED::

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KALIKKOTAN THAMBAN NAIR, AGED 46 YEARS, S/O.MELATH MADHAVAN NAIR, MANIYAMKODE, MOLIYAR VILLAGE, KASARAGOD.

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BY ADVS.SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI

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RESPONDENT(S)/COMPLAINANT::

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STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, KASARAGOD EXCISE RANGE, WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SENIOR PUBLIC PROSECUTOR SRI C.S. HRITHWICK.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 345 of 2009

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............................................................... Dated this the 28^th day of October, 2016

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J U D G M E N T

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Appellant is the accused in Sessions Case No.354/2006 of the Additional Sessions Court Adhoc-I Kasaragod, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for three months and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for one more month.

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The prosecution case is that on 12.02.2001 at

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4.00 p.m., the accused was found transporting 100 packets,

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each containing 100 ml of arrack, through the public road at Bovikanam, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Excise

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Crl. Appeal No. 345 of 2009 -: 2 :-

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Inspector, Kasaragod. He placed the accused under arrest through Ext.P1 arrest memo and seized the contraband through Ext.P4 mahazar. A sample of 300 ml was drawn. On reaching the Excise Office, he registered Ext.P5 crime and occurrence report. The sample was produced before court through Ext.P6 property list. Forwarding note was furnished, the copy of which is Ext.P7. Investigation was taken over by PW3 on 22.12.2005. Based on Ext.P9 certificate of chemical analysis, he filed the final report.

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On the side of the prosecution, PWs 1 to 3 were examined, Ext.P1 to Ext.P9 were marked, and MOs.1 to 3 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued

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Crl. Appeal No. 345 of 2009

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that no charge was framed against the accused by the court below for the offence punishable under Section 8(2) of the Abkari Act, and therefore, the court below ought not to have convicted and sentenced the accused for the offence under Section 8(2) of the Abkari Act. It has also been argued that the investigation was commenced by PW3, after more than four years of the so-called detection and seizure, by which time the independent witnesses allegedly made as attestors in Ext.P4 mahazar have become dead thereby the accused could not get an opportunity to cross-examine them to prove the contentions of the accused.

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PW1 has narrated the incident involved in this case. It is true that PW2, who was present along with PW1, has also supported the versions of PW1 regarding the incident. PW1 has no case that he had identified the contraband as arrack by smelling and tasting it. At the same time, PW2 has stated that he could identify the contraband as arrack by smelling and tasting it. Ext.P9 does not show

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Crl. Appeal No. 345 of 2009

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that the contraband involved is arrack. At the same time, it clearly shows that the sample contained ethyl alcohol. Ext.P9, coupled with the evidence of PW2, is sufficient to show that the contraband involved was arrack.

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At the same time, PW1 and PW2 has no case that the arrack in question was Karnataka made arrack. So long as there is no evidence to show that the arrack was Karnataka made arrack, the mere possession or transportation of the said contraband cannot be styled as an illegal transportation of liquor within the meaning of Section 55(a) of the Abkari Act. Only when the liquor is seized in the course of an illegal import, illegal export or illegal transport, an offence under Section 55(a) of the Abkari Act can be attracted. May be because of that fact, the court below was constrained to convict the accused under Section 8(2) of the Abkari Act, disregarding the charge framed for the offence punishable under Section 55(a) of the Abkari Act. Normally, such a course is possible only when there is a

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Crl. Appeal No. 345 of 2009

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doubt within the meaning of Section 221(2) Cr.P.C. regarding the actual offence that has been committed.

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In the impugned judgment, the court below has

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not made mention of any such doubt regarding the actual offence that has been committed. Had the court below been sure that the offence alleged could only be one under Section 8(2) of the Abkari Act, the court below ought not to have framed charge for the offence punishable under Section 55(a) of the Abkari Act. Whatever it is, the said argument is too hypertechnical and therefore, it cannot be said that the conviction as such is bad in law, even though the charge was not framed under Section 8(2) of the Abkari

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Act, in the light of the decision in Jose v. State of Kerala [2007 (2) KLT 202].

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The appellant has a clear case that the investigation was commenced after four years of the incident. Unnecessarily, the matter was kept pending without doing anything for a period of more than four years.

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Crl. Appeal No. 345 of 2009

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Normally, in a case wherein there is no limitation, it may not have any consequence. At the same time, in this particular case, both the attesting witnesses cited as witnesses to prove the seizure were not available for examination, allegedly on account of their death. In such case, it seems that the accused was really prejudiced in not getting an opportunity to subject those two witnesses to crossexamination as an attempt to prove his contentions. In the decision of the Apex Court in A.Tajudeen v. Union of India [2015 (4) SCC 435], it was held in paragraph 31 as follows: “Merely because the “mahazar” was attested by two independent witnesses, namely R.M. Subramanian and Hayad Basha, would not lend credibility to the same. Such credibility would attach to the “mahazar” only if the said two independent witnesses were produced as witnesses, and the appellant was afforded an opportunity to cross-examine them. The aforesaid procedure was

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Crl. Appeal No. 345 of 2009

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unfortunately not adopted in this case.”

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The aforesaid dictum is squarely applicable to the

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facts and circumstances of the present case also. Solely because of the fact that PW3, or his predecessors-in-office if any, had chosen to sleep over the matter for more than four years, the accused was really prejudiced in not getting an opportunity to subject the so-called independent witnesses to cross-examination. No such opportunity was afforded to the prosecution also as they did not get an opportunity to prove Ext.P4 seizure mahazar through the independent witnesses. It is not at all a question whether they would have turned hostile to the prosecution or not. Matters being so, this Court is of the view that the available evidence in this matter is not sufficient to find the accused guilty of the offence punishable under Section 8(2) of the Abkari Act. Hence, the conviction and sentence passed by the court below are liable to be set aside.

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In the result, this Criminal Appeal is allowed, and the

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Crl. Appeal No. 345 of 2009

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conviction and sentence passed by the court below are set aside. The appellant stands acquitted.

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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.

Kalikkotan Thamban Nair v. State of Kerala

Case brief

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Kalikkotan Thamban Nair v. State of Kerala

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