Allowed

Govindankutty v. State of Kerala

Kerala HC6 Oct 2016CRL.A/425/2009

Case brief

AI extract

What is this about?

In an appeal against conviction for possession of arrack, the court held that the lower court's conviction under Section 58 of the Abkari Act was unsustainable due to lack of proof of conscious possession. Considering the appellant's advanced age and weakness, the High Court set aside the conviction and sentence directly, acquitting the accused instead of remitting the case.

What did the court decide?

The conviction and sentence under Section 58 of the Abkari Act are set aside; the appellant is acquitted.

Govindankutty Vs State of Kerala — Kerala HC (2016) — LawSathi Research

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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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THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938

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CRL.A.No. 425 of 2009 ( )

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AGAINST THE JUDGMENT IN SC 290/2008 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 24-01-2009

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CP 105/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERRY

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APPELLANT(S)/ACCUSED:

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GOVINDANKUTTY, S/O NARAYANAN NAIR, ATHANIKKAN HOUSE, KONDAZHI VILLAGE, VEETTIKUNNU COLONY, THALAPPILLY TALUK.

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BY ADVS.SRI.SANTHEEP ANKARATH

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SRI.V.C.MADHAVANKUTTY

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA,

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REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., REPRESENTING EXCISE INSPECTOR, PAZHAYANNUR, THRISSUR DISTRICT.

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R BY SENIOR PUBLIC PROSECUTOR ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.425 of 2009

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Dated this the 6^th day of October, 2016

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JUDGMENT

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Appellant is the accused in Sessions Case No.290/2008

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of the Additional Sessions Court Adhoc-I, Thrissur, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for two months.

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The prosecution case is that on 09.06.2007 at 02.10 p.m., the accused was found in possession of 1.5 litres of arrack at the Panchayath road leading to Veettikunnu Colony at Kondazhi village, in contravention of the Provisions of the Abkari Act.

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PW4 Excise Inspector of Pazhayannur Village has detected the offence. He seized the contraband through Ext.P1

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mahazar and placed the accused under arrest. A sample of 180 ml was drawn. He registered Ext.P4 crime and occurrence report

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and produced the property and sample before the court through

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Crl.Appeal No.425 of 2009 2

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Ext.P5 property list. PW5 Excise Inspector completed the investigation and filed final report on getting Ext.P8 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 7 were examined, Ext.P1 to Ext.P8 were marked, and MO 1 was identified. No defence evidence was adduced. Even though the final report was filed alleging the offence punishable under Section 58 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 Public Prosecutor.

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The learned counsel for the appellant has argued that the prosecution has failed to adduce any evidence regarding the

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conscious possession of the contraband and therefore the conviction under Section 58 of the Abkari Act is not legally sustainable.

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This is a case were final report was filed alleging an offence punishable under Section 8(2) of the Abkari Act. PW4 who detected the offence and PW1 Preventive Officer who had

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Crl.Appeal No.425 of 2009 3

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accompanied PW4 have deposed that they could identify the contraband as arrack by smelling and tasting it. Ext.P8 certificate of chemical analysis shows that the sample contained 33.59% by volume of ethyl alcohol. The court below could have taken note of the fact that the contraband involved was arrack and therefore, the court below could have convicted the accused for the offence under Section 8(2) of the Abkari Act.

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Instead of convicting the accused for offence under Section 8(2) of the Abkari Act, the court below has considered the contraband as illicit liquor and has chosen to convict the accused under Section 58 of the Abkari Act. In order to attract

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an offence under Section 58 of the Abkari Act, the prosecution has to prove that the accused was in conscious possession of such

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illicit liquor. Even though in Ext.P1 mahazar, the version of the accused that the contents of the bottle was arrack has been recorded, the said aspect does not find a place in the evidence of PWs 4 and 1. From the evidence adduced by the prosecution, it

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has not come out that the accused was in conscious possession of the contraband.

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Crl.Appeal No.425 of 2009

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This Court has taken note of the fact that the submission of the learned counsel for the appellant that the appellant is aged above 80 and is very weak. In such a circumstances, it is not just and proper in the interest of justice to remit the case once again to the court below for fresh disposal. The court below could have convicted the accused under Section 8(2) of the Abkari Act and at the same time the court below has chosen to convict the accused under Section 58 of the Abkari Act. For the reasons mentioned above, conviction of the accused under Section 58 of the Abkari Act is not legally sustainable and therefore the conviction and sentence passed by

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the court below are liable to be set aside.

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In the result, this Crl.Appeal is allowed. The

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conviction and sentence passed by the court below are set aside and the accused is acquitted. Sd/-

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B.KEMAL PASHA JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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AD/06/10/16

Govindankutty v. State of Kerala

Case brief

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What did the court decide?

Govindankutty v. State of Kerala

Case brief

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