Allowed

Nettoor Veettil Babu @ Avi Babu v. State of Kerala

Kerala HC19 Aug 2016CRL.A/817/2009

Case brief

AI extract

What is this about?

In this criminal appeal concerning possession of arrack, the High Court acquittal the appellant. The Court found the lower court's conviction unsustainable due to defects in identification, lack of evidence regarding the final report and sample production, and the testimony of a hostile witness preventing reliable identification at the trial.

What did the court decide?

Conviction and sentence under Section 58 of the Abkari Act set aside; appellant acquitted.

Nettoor Veettil Babu @ Avi Babu 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 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938

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CRL.A.No. 817 of 2009 ( )

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SC 1345/2005 of ADDL.SESSIONS COURT (ADHOC)-II,

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THALASSERY

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APPELLANT(S):

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NETTOOR VEETTIL BABU @ AVI BABU, S/O.BALAN, AGED 32 YEARS,RESIDING AT KURUMBOLI HOUSE, KURUMBOLI,KANNUR DISTRICT.

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BY ADV. SRI.K.RAJESH SUKUMARAN

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RESPONDENT(S):

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STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.C.S. HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No. 817 of 2009 ( )

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APPENDIX

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PETITIONER'S ANNEXURES :

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ANNEXURE 1: JUDGMENT DT 21/3/2009 IN SC 1345/2005 OF THE ADDL. SESSIONS COURT (AD-HOC II) THALASSERRY.

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RESPONDENT'S ANNEXURES : NIL. //TRUE COPY// P.A. TO JUDGE bp

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B.KEMAL PASHA, J.

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================

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Crl.A. No.817 of 2009

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======================= Dated this the 19^th day of August, 2016

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JUDGMENT

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Appellant is the accused in SC No.1345/2005 of the Additional Sessions Court (Adhoc-II), Thalasserry, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of 1,00,000/-, in default to undergo₹ rigorous imprisonment for one more year.

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The prosecution case is that on 20.11.2004 at 5.30 p.m., the accused was found in possession of 8 litres of arrack in a 10 litre capacity can at a place called Kurumboli in Sivapuram amsom, in contravention of the provisions of the Abkari Act.

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CW1 Sub Inspector of Police, Maloor, detected the offence. He seized the contraband through Ext.P1 mahazar.

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Crl.A. No.817 of 2009

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A sample of 375 ml. was drawn. Since the accused ran away from the spot, he could not be placed under arrest. PWs.1 and 3 Police Constables were also present along with CW1. CW1 registered Ext.P3 FIR. He conducted the investigation and filed the final report.

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On the side of the prosecution, PWs.1 to 3 were examined and Exts.P1 to P7 were marked. No defence evidence was adduced. The court below found the appellant guilty of 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 Investigating Officer was not examined as he was no more at the time of examination. It has been argued that there is no evidence in this case to show as to who had filed the final report in the case. It has also been argued that

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Crl.A. No.817 of 2009

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there is no evidence to show as to who had produced the sample before court. It has been further argued that the accused was not properly identified.

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According to PWs.1 and 3, they were present along with CW1 at the time of seizure. On seeing the Police party, the person concerned, who was holding the can containing arrack, ran away after leaving the can. He could not be apprehended. The evidence of PWs.1 and 3 clearly reveal that the accused was not previously known to them. They could not identify the person then and there and therefore, they had obtained the assistance of PW2, from whom, they could gather information regarding the name and address of the accused. Therefore, it is evident that at that particular point of time, PWs.1 and 3 were not directly aware of the identity of the accused. It is their admitted case that information regarding the name and address were furnished by PW2.

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PW2 has turned hostile to the prosecution. Even

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Crl.A. No.817 of 2009

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though he has admitted his signature in Ext.P1, he has stated that he affixed the signature in Ext.P1 at the Police Station and that he did not know the accused. From the versions of PW2, it is evident that he has no case that he had divulged information regarding the accused to the Police. When PWs.1 and 3 were not aware of the identity of the accused, at the time when the accused had allegedly ran away from the spot, in the absence of a Test Identification parade, their identification of the accused in court for the first time, cannot be believed. The accused was not placed under arrest. In such a case, especially when PW2 has turned hostile to the prosecution, the identification of the accused by PWs.1 and 3 cannot be relied on.

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Apart from the above, there is no evidence to show as to who has filed the final report in the case and as to who had produced the sample and contraband before court. From all the above, this Court is satisfied that the conviction and sentence passed by the court below are

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Crl.A. No.817 of 2009

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liable to be set aside.

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In the result, this Crl.Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.

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Sd/-

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B.KEMAL PASHA, JUDGE

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stu

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//TRUE COPY//

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P.A TO JUDGE.

Nettoor Veettil Babu @ Avi Babu v. State of Kerala

Case brief

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Nettoor Veettil Babu @ Avi Babu v. State of Kerala

Case brief

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