Allowed

Shajimon v. State of Kerala

Kerala HC21 Jan 2019CRL.A/1023/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed this criminal appeal against conviction under Section 58 of the Kerala Abkari Act. The Court held that the trial evidence only substantiated possession of one bottle, insufficient for conviction, and cited flaws in the sample chain of evidence for the seized items.

What did the court decide?

Appellant acquitted of the offence under Section 58 of the Act; conviction and sentence set aside; accused released from prosecution; deposit released.

Shajimon Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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 P.UBAID

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MONDAY, THE 21ST DAY OF JANUARY 2019/1ST MAGHA, 1940

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CRL.A.No.1023 of 2006

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JUDGMENT IN SC 185/2001 of ADDL.SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 16.5.2006

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APPELLANT/ACCUSED :-

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SHAJIMON, S/O.KURUNNALLYOSE, PAZHAVILA VEEDU, KOVALAM, AVADUTHURA DESOM, VIZHINJAM VILLAGE.

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BY ADV. SRI.G.SUDHEER

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RESPONDENT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.SANTHOSH PETER (PUBLIC PROSECUTOR)

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.1023/2006

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JUDGMENT

The appellant herein challenges the conviction and sentence against him under Section 58 of the Kerala Abkari Act (the Act) in S.C.185/2001 of the Court of Session, Neyyattinkara. He faced trial before the learned Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara on the allegation that when the Sub Inspector of Police, Kovalam conducted a search at the restaurant of the accused by name, 'Sea Shore Restaurant' at Avaduthura near Kovalam, he was found unauthorisedly possessing 77 bottles of beer. Five bottles of 650 ml capacity containing beer were seen in the freezer at the restaurant, and the other 72 bottles were seen in six cardboard boxes. The Sub Inspector seized the 77 bottles of liquor and arrested the accused on the spot. On the basis of the arrest and seizure, he registered the crime, and later, another Sub Inspector conducted investigation, and submitted final report in court.

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CRL.A.No.1023/2006

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The accused appeared before the learned trial

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Judge, and pleaded not guilty to the charge framed

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against him under Section 55(a) of the Act. The

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prosecution examined seven witnesses, and proved Exts.P1 to P9 documents in the trial court. The MO1 and MO2 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty under Section 58 of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 16.5.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find that there are some infirmities in this case, the benefit of which must go to the accused. Factually also, the conviction cannot be sustained because, the very finding of the trial court is that the accused was found unauthorisedly

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CRL.A.No.1023/2006

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possessing one bottle of beer having 650 ml capacity.

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Possession of one bottle of beer (650 ml) cannot at

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all be punished under the Act. Even if the entire prosecution case is accepted that the accused was found possessing 77 bottles of beer having the label

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of the Kerala State Beverages Corporation, the punishment possible is only under Section 63 of the Act, for the possession of excess quantity of liquor beyond the permitted limit. In paragraph 13 of the judgment of the trial court (page 8) the finding made by the learned trial Judge is as follows :-

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“13. However, in the circumstances of

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the case it is to be noted out that the Chemical Report obtained is with regard to one bottle alone when there are 77 bottles of liquor. Prosecution also has not brought out as to what exactly is the liquid in the 76 bottles, that have been seized from the place of occurrence. No Chemical Examination has been carried out with regard to the liquid in these 76 bottles. So long as those bottles are not tested by the Chemical Analyst, it is not possible legally to enter into a finding that those 76 bottles were beer bottles or bottles filled with beer liquid, which is

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CRL.A.No.1023/2006

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liquor. It can only be found out that one bottle was subjected to chemical analysis which was a bottle seized from the place of occurrence in this case, which was found to have been containing 4.20% by volume of Ethyl Alcohol and that it was 650 ml. in quantity. It can be perceived that one beer bottle with 650 ml. liquid in it was subjected to Chemical Examination and the result was reported as per Ext.P8. Thus Ext.P8 stands against the accused for the possession of 650 ml. of beer in a bottle without licence or authority. Prosecution can sustain its case only to an extent to make the accused answerable for possession of this 650 ml. of liquor alone. ….....”

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Possession of one bottle of beer (650 ml)

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cannot be punished under the Act. When the finding of

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the trial court is that there is absolutely no evidence as regards 76 bottles, this Court cannot interfere in this appeal on this aspect. Though as

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many as 77 bottles were produced in court by the prosecution, only one bottle was subjected to analysis. As regards the other 76 bottles, the

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finding of the trial court is that prosecution does not have any believable or consistent case as to what

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CRL.A.No.1023/2006

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exactly is the brand of the liquor seized. The prosecution records would reveal that all the 77 bottles have the label of 'Kingfischer beer'. But during trial, the trial court found that some of the bottles do not have such a label. Any way, there is

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nothing to show that any bottle was taken as sample by the Detecting Officer at the time of detection. It is

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not known what sample was produced in court, or

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whether the sample analysed at the laboratory was in fact collected from the possession of the accused.

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This Court has settled that the copy of the

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forwarding note produced by the Detecting Officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. No such forwarding note is seen produced or proved in this case. It is not known what seal was affixed on the sample by the Sub Inspector. The accused has got a definite defence that the sample produced in this case is not the one collected from his possession. The property list produced in this case shows that 77 bottles of beer were produced in

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CRL.A.No.1023/2006

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court, and none of these bottles was produced as sample. The mahazar does not show that any sample was taken on the spot. The Sub Inspector has also no case

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that he had taken any sample at the time of detection. If so, it requires explanation as to who collected sample, or where it was collected, or how it was collected. If the Sub Inspector had not collected any sample, it requires explanation how a sample happened to be produced in court for analysis. It appears that somebody at the court collected a sample, and sent it for analysis. It is not known, who did it, or who authorised such an act. When the accused has definite case that the sample produced in court is not the one collected from him, the prosecution is bound to prove that the sample sent for analysis from court is the sample seized from the possession of the accused. There is nothing to prove this very material aspect. This means that there is absolutely nothing to identify the sample sent for analysis as the sample collected from the possession of the accused. The finding of the trial court is that there is evidence

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CRL.A.No.1023/2006

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only regarding one bottle of beer, or that the

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evidence proves that the accused was found possessing only one bottle of beer.

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In the result, the appeal is allowed. The

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appellant is found not guilty of the offence under Section 58 of the Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in S.C.No.185/2001 of the court below will stand set

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aside, and the accused will stand released from prosecution. The amount, if any deposited by the appellant in the trial court as a condition for suspension of sentence shall be released to him.

Sd/P.UBAID JUDGE

//True copy//

P.A. To Judge

Jvt/23.1.2019

Shajimon v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shajimon v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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