Allowed

Sivan Pillai v. State of Kerala

Kerala HC31 Oct 2016CRL.A/806/2009

Case brief

AI extract

What is this about?

In a criminal appeal against conviction under Section 8(2) of the Abkari Act, the court held that there was no safe evidence to convict the appellant. The absence of tribal identification by excise officers and irregularities in the production and forwarding of the sample led the court to set aside the conviction and sentence, acquitting the appellant.

What did the court decide?

The conviction and sentence passed by the court below are set aside and the accused is acquitted.

Sivan Pillai 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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MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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CRL.A.No. 806 of 2009 (A)

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AGAINST THE JUDGMENT IN SC 816/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 26-03-2009

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APPELLANT(S)/ACCUSED:

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SIVAN PILLAI, S/O.KUTTAPPAKURUP, PRADEEP BHAVANAM(KANNAMBALLIL VEEDU), PAVUMBA NORTH, PAVUMBA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT.

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BY ADV. SRI. K.SIJU

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA

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REP. BY EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R BY PUBLIC PROSECUTOR C.S.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.806 of 2009

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Dated this the 31^st day of October, 2016

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JUDGMENT

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Appellant is the accused in Sessions Case No.816/2007

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of the Additional Sessions Court Adhoc-II, Kollam, who stands convicted under Section 8(2) 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 six months.

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The prosecution case is that on 09.08.2004 at about 6.00 p.m., the accused was found transporting two bottles each containing 750ml of arrack through the Chirakkal temple road, in Pavumba village, in contravention of the Provisions of the Abkari Act.

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PW3 Preventive Officer of Excise, Karunagappally detected the offence. He seized the contraband through Ext.P1 mahazar. A sample of 200ml was drawn from the contraband. The accused was placed under arrest through Ext.P2 arrest memo. He produced the accused along with the contraband,

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Crl.Appeal No.806 of 2009

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sample, and records at the Excise Office, Karunagappally. PW6 Excise Inspector, Karunagappally registered Ext.P4 crime and occurrence report. He produced the properties before court through Ext.P5 property list. Forwarding note was furnished, the copy of which is Ext.P6. Ext.P7 certificate of chemical analysis was obtained. PW5 Excise Inspector, Karunagappally completed the investigation, and filed the final report.

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On the side of the prosecution, PWs 1 to 6 were

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examined, Ext.P1 to Ext.P7 were marked, and MO1 and MO2

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series were identified. 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

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learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued that

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there is no evidence before the court below to show that the contraband involved in the case is arrack and therefore, there is no evidence in this case to convict the accused for the offence punishable under Section 8(2) of the Abkari Act. It has been

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Crl.Appeal No.806 of 2009

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further argued that the accused has adduced evidence to show that he was arrested from a tea shop wherein he was working as an employee. It has been further argued that there is inordinate delay in the production of the sample before court and therefore, Ext.P7 cannot be relied on.

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It is true that the accused has contended from the

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very beginning that he was taken into custody by the Excise people from the tea shop. He has examined DW1 and DW2 to prove the same. DW1 was the ration shop owner of the locality, who deposed that the accused was working at the tea shop of one Ramarajan, from where the accused was taken into custody. According to him, even though he along with the local panchayath member had approached the Excise people for the release of the accused, the Excise officials wanted the production of Ramarajan before the Excise officials, since the said Ramarajan was involved in several Abkari cases. Same was the evidence tendered by PW2 who was the panchayath member.

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Apart from the above, it seems that there is no evidence in this case to show that the contraband involved in the

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Crl.Appeal No.806 of 2009

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case is arrack. Either PW3 who detected the offence or PW4 Excise Guard who had allegedly accompanied PW3 has no case that they had examined the contents of the bottle by smelling and tasting it and that they could identify the contents as arrack. It is true that in Ext.P7 certificate of chemical analysis stated that the sample contained 35.28% by volume of ethyl alcohol. The mere presence of ethyl alcohol in the contraband does not make it arrack. As experienced officers, PW3 or PW4 could have adduced evidence before the court below that they had occasion to identify the contents as arrack by smelling and tasting it. No such evidence is forthcoming in the matter.

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Apart form all the above, even though the contraband

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was produced on 10.08.2004 before the court below as is evidenced from Ext.P5 property list, it seems that on the submission made by the office staff of the court on the overleaf of Ext.P5 on 10.08.2004 itself, for returning the properties to the Excise Officers for safe custody, the learned Magistrate has passed order dated 11.08.2004 approving the said submission. It is evident that the properties were returned to the Excise

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Crl.Appeal No.806 of 2009

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people. Ext.P7 shows that the properties had reached the laboratory on 17.08.2004 only. Matters being so, there is no evidence in this case to show the actual production of the sample before the court below and the date on which the sample was forwarded to the laboratory. There is delay also in forwarding the sample to the laboratory.

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From all the above, this Court is of the view that it is not at all safe to convict the accused for the offence under Section 8(2) of the Abkari Act in this case and therefore, the conviction and sentence passed by 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.

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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/31/10/16

Sivan Pillai v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sivan Pillai v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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