Allowed

Ravi v. State of Kerala

Kerala HC25 Jan 2019CRL.A/2322/2006

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against conviction under Section 8(2) of the Kerala Abkari Act for possessing arrack. The court quashed the conviction due to procedural infirmities, specifically the absence of a proved forwarding note with the specimen seal on the seized sample, casting doubt on whether the liquid was identified as arrack. The appellant was acquitted.

What did the court decide?

Appellant found not guilty and acquitted; conviction and sentence set aside; released from prosecution.

Ravi Vs State of Kerala — Constitutional and Fundamental Rights | 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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FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

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CRL.A.No. 2322 of 2006

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AGAINST THE ORDER/JUDGMENT IN SC 1144/2003 of PRINCIPAL ASSISTANT SESSIONS COURT,KOLLAM DATED 04-11-2006

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AGAINST THE ORDER/JUDGMENT IN CP 89/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS , SASTHAMCOTTA

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APPELLANT/ACCUSED:

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RAVI, S/O. MADHAVAN PUTHANPARAMBIL VEEDU, ADINADU VADAKKUMMURI,, KULASEKHARAPURAM VILLAGE, KARUNGAGAPALLY TALUK.

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BY ADV. SRI.T.GOPALAKRISHNAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA INSPECTOR OF EXCISE RANGE, SASTHAMCOTTAH,, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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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 25.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 2322 of 2006

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J U D G M E N T

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The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short “the Act”) in S.C. No. 1144 of 2003 of the Court of Session, Kollam. He faced trial before the learned Principal Assistant Sessions Judge, Kollam, on the allegation that at about 5.30 p.m. on 27.03.1998, he was found possessing one litre of arrack in a plastic can of five litres capacity. The offence was detected by the Circle Inspector of Excise, Kunnathoor. He arrested the accused on the spot, and seized the plastic can allegedly containing arrack as per a mahazar. On the basis of the arrest and seizure made by him, the Excise Inspector of the Sasthamcottah Excise Range registered the crime and occurrence report. Another Excise Inspector conducted investigation, and submitted final report in court.

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CRL.A.No. 2322 of 2006

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2. The accused appeared before the

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learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution

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examined five witnesses, and proved Exts.P1 to P6 documents in the trial court. The MO1 can was

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also identified during trial.

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3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. He examined a witness as DW1 in defence.

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4. 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 lakh. Aggrieved by the judgment of conviction dated 4.11.2006, the accused has come up in appeal.

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5. On hearing both sides, and on a perusal of the materials, I find some serious infirmities and doubtful circumstances in this

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CRL.A.No. 2322 of 2006

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-4-

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case, the benefit of which must go to the accused.

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6. Of the five witnesses examined in the trial court, PW1 is the Excise Circle Inspector who detected the offence, and PW4 is the Excise Inspector who registered the crime. PW3 is the Preventive Officer who assisted the Excise Circle Inspector, and PW5 is the Excise Inspector who conducted investigation. The independent witness examined as PW2 turned hostile. PW1 and PW3 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.

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7. This Court has settled the legal position that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the seal affixed on

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the sample. Such a forwarding note is not seen

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CRL.A.No. 2322 of 2006

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-5-

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produced or proved in this case. It is not known what seal was affixed on the sample by PW1. He has not stated anything about the sample, and the detection mahazar also does not show the specimen of the seal affixed on the sample. Thus, there is nothing to identify the sample produced in court as the one collected from the possession of the accused. There is nothing to show that any sample was in fact collected by PW1 at the time of detection. It appears that somebody at the court collected the required sample. It is not known who collected the sample, or how it was collected, or on whose authority it was collected. In fact, there is nothing to show that the liquid contained

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in the MO1 can was identified as arrack. In the above circumstances, the accused cannot be found guilty. Another infirmity pointed out by the defence is that investigation was done by an Excise Inspector when the detection was made by his

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CRL.A.No. 2322 of 2006 -6-

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superior officer. Anyway, in the absence of satisfactory evidence, the accused cannot be found guilty.

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In the result, the appeal is allowed. The appellant is found not guilty of the offence under 8(2) of the Act, and he is acquitted of the offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in S.C. No. 1144 of 2003 of the court below will stand set aside, and he will stand released from the prosecution.

Sd/-

P.UBAID

Ds 25.01.2019

JUDGE

Ravi v. State of Kerala

Case brief

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Ravi v. State of Kerala

Case brief

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