Allowed

Prakashan Pillai v. State of Kerala

Kerala HC24 Jan 2019CRL.A/2176/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against conviction under Section 8(2) of the Kerala Abkari Act. The court found critical infirmities in the prosecution case, including lack of contemporaneous sample collection, unproved forwarding notes for analysis, contradictory witness testimony on labeling, and unreasonable delay in producing seized contraband in court.

What did the court decide?

Appellant acquitted of the offence; conviction and sentence set aside; accused released from prosecution; bail bond discharged.

Prakashan Pillai Vs State of Kerala — Narcotics (NDPS) | 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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THURSDAY, THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940

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CRL.A.No. 2176 of 2006

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AGAINST THE JUDGMENT IN SC 1205/2003 of PRINCIPAL ASSISTANT SESSIONS COURT, KOLLAM DATED 24.08.2006

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APPELLANT/ACCUSED :

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PRAKASHAN PILLAI, SON OF BHASKARAN PILLAI, KOTTAKKAKATHU PADINJATTATHIL, PULIKKULAM MURIYIL, SOORANADU VADAKKU VILLAGE, KOLLAM.

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BY ADV. SRI.JOHNSON GOMEZ

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RESPONDENT/COMPLAINANT :

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THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, SASTHAMCOTTA EXCISE RANGE.

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OTHER PRESENT:

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SRI SANTHOSH PETER-PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 2176 of 2006

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JUDGMENT

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The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act(“the Act”) in S.C.No.1205 of 2003 of the Court of Session, Kollam.

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He faced trial before the learned Principal Assistant Sessions Judge, Kollam on the allegation that at about 11.30 a.m. on 19.06.1998, he was found possessing 5 litres of arrack in a plastic can. The offence was detected by a Preventive Officer of the Sasthamcotta Excise Range. He arrested the accused on the spot, and seized the plastic can allegedly containing arrack. He produced the accused and the properties at the Excise Range Office where the Excise Inspector registered the crime and occurrence report. Another Excise Inspector conducted investigation, and submitted final report in Court.

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The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses, and proved Exts.P1 to P4 documents in the trial court. The MO1 property was also identified during trial. The accused did not adduce any evidence in defence. He projected a defence of total denial.

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CRL.A.No. 2176 of 2006

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On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). Aggrieved by the judgment of conviction dated 24.08.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find some infirmities in this case affecting the whole prosecution case, and the benefit of these must go to the accused. Of the six witnesses examined in the trial court, PW1 is the Preventive Officer who detected offence, and PW2 is the Excise Guard who assisted the Preventive Officer. PW3 and PW4 examined as independent attestors to the seizure mahazar turned hostile. PW5 is the Excise Inspector who registered the crime and occurrence report, and PW6 is the Excise Inspector who conducted investigation, and submitted final report in Court. PW1 and PW2 have given evidence regarding the arrest of the accused, and the seizure of a plastic can which they identified as MO1. The crucial question is whether the liquid therein was identified as arrack as the prosecution would allege. The mahazar does not show that any sample was taken by PW1 at the time of detection. He or PW2 has no case that any sample was collected at the time of detection. The Ext.P4 report of analysis relates to a sample forwarded from the

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CRL.A.No. 2176 of 2006

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Court. There is nothing to identify the sample as one collected from the possession of the accused. The copy of the forwarding note is not seen proved in evidence. It is not known who collected sample, or how a sample happened to be sent for analysis when no sample was taken by PW1 at the time of detection. It appears that sample was taken at the Court of the learned Magistrate. It is not known who collected sample, or who authorised to collect sample. In such a circumstance, when there is nothing to show that any sample was collected, no value can be attached to the Ext.P4 report, and it will not bind the accused. As regards the MO1 can, PW1 stated in examination in chief that there is a label on it, but in crossexamination he stated that he had not affixed any label containing the signature of the accused and the witnesses. Thus, there is nothing satisfactory to identify the MO1 also as the can seized from the possession of the accused. In the absence of anything to prove that the liquid contained in the MO1 was identified as arrack, the accused cannot be convicted under Section 8(2) of the Act.

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This Court has settled that in cases like this contraband articles must be produced in Court without any delay. The detection in this case was made on 19.06.1998, but the Ext.P3 property list shows that the property was produced in Court only on 27.06.1998. The Excise Inspector has no explanation for this delay.

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CRL.A.No. 2176 of 2006

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It is not known in whose custody the property was till 27.06.1998. In the absence of such explanation the inordinate delay will create suspicion.

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In the result, this appeal is allowed. The appellant herein is not found guilty of the offence under Section 8(2) of the Kerala Abkari Act, and accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C.No.1205 of 2003 of the court below will stand set aside. The accused will stand released from prosecution, and the bail bond, if any, executed by him will stand discharged. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence will be released.

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Sd/-

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P.UBAID JUDGE

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rkj

Prakashan Pillai v. State of Kerala

Case brief

What is this about?

What did the court decide?

Prakashan Pillai v. State of Kerala

Case brief

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