The High Court set aside the conviction and sentence of the appellant for transporting wash in contravention of the Kerala Abkari Act. The Court found insufficient evidence, notarising from procedural failures under Section 53 A and lack of independent support for the prosecution witnesses.
Conviction and sentence set aside; accused acquitted.
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 B.KEMAL PASHA
FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938
CRL.A.No. 810 of 2009 (A)
AGAINST THE JUDGMENT IN SC 567/2007 of ADDL.DISTRICT COURT (ADHOC), KOZHIKODE DATED 30-03-2009
APPELLANT(S)/ACCUSED:
PUSHPA @ DEVI, W/O.MANI PULPARAMBIL HOUSE, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R BY PUBLIC PROSECUTOR SRI.C.S HRITWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AD
B.KEMAL PASHA, J.
Crl.Appeal No.810 of 2009
Dated this the 21st day of October, 2016
JUDGMENT
Appellant is the accused in Sessions Case No.567/2007
of the Additional Sessions Court Adhoc-I, Kozhikode, who stands convicted under Section 55(g) 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 rigorous imprisonment for six more months.
mahazar. A sample of 500ml was drawn from the contraband. The balance contraband was destroyed. He produced the accused along with the sample and records before PW5 Excise
Crl.Appeal No.810 of 2009 2
Inspector Kunnamangalam. PW5 registered Cr.No. 43/2006 through Ext.P3 crime and occurrence report. He produced the sample before Court on 20.10.2006. On getting Ext.P6 certificate of chemical analysis, he filed the final report.
learned Senior Public Prosecutor.
caused to be drawn from the contraband allegedly involved in the case. It is alleged that without any authority, the balance contraband allegedly seized in the case was destroyed by PW5. It has been further argued that the sample alone was produced
3
Crl.Appeal No.810 of 2009
before court on 20.10.2006 and the container was not produced on that day: whereas, the container was produced after more than a year on 23.06.2007.
of wash was allegedly involved. The fact that such a quantity of wash contained in a can was carried by the appellant through a public road in open daylight, cannot be believed. Of course, the said aspect was spoken to by PW2 Excise Guard also, who was allegedly accompanying PW1. The independent witnesses cited by the prosecution has not supported the prosecution case. The accused was not arrested from the spot, because of the fact that
no women Police Constable or women officer were present along with PW1.
arrest from the spot, PW1 ought to have scrupulously followed the mandatory procedure contained in Section 53 A(2) of the Kerala Abkari Act. No such application was made before the learned Magistrate. No such inventory was prepared and the certification of the learned Magistrate was not obtained.
Crl.Appeal No.810 of 2009
4
Matters being so, this Court is of the view that the evidence in the case is not sufficient to invite a conviction under Section 55
(g) of the Abkari Act and therefore, the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Crl.Appeal is allowed. The
conviction and sentence passed by the court below are set aside and the accused is acquitted.
Sd/- B.KEMAL PASHA JUDGE
//TRUE COPY//
P.A. TO JUDGE
AD/21/10/16
2 issues framed by the court
Whether sufficient evidence exists to convict the appellant under Section 55(g) of the Abkari Act.
Whether the failure to comply with Section 53 A(2) of the Kerala Abkari Act regarding documentation vitiates the seizure and conviction.
3 provisions across 2 enactments
PUSHPA @ DEVI
STATE OF KERALA
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
