Allowed

Sreenivasan @ Subramanian v. State of Kerala

Kerala HC12 Jul 2019CRL.A/684/2006

Case brief

AI extract

What is this about?

Kerala High Court allowed a criminal appeal under Section 8(2) of the Abkari Act. The court acquittal the appellant, finding that unexplained delays in producing seized contraband and filing the final report destroyed the prosecution's case and entitled the accused to benefit of doubt.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond discharged.

Sreenivasan @ Subramanian 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 B.SUDHEENDRA KUMAR

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FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941

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CRL.A.No.684 of 2006

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AGAINST THE JUDGMENT IN SC 205/2005 of ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD

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APPELLANT:

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SREENIVASAN @ SUBRAMANIAN, S/O.THOOMBAN, MAYILADUMPARA COLONY, KALLUR, MANKARA, PALAKKAD.

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BY ADVS. SRI.K.M.KURIAN

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SRI.P.VIJAYAKUMAR

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RESPONDENTS:

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

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2 THE EXCISE INSPECTOR PARALI RANGE, PALAKKAD.

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By PUBLIC PROSECUTOR SRI. BINEESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.684 of 2006

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JUDGMENT

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The appellant was convicted and sentenced by the court below under Section 8 (2) of the Abkari Act.

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The prosecution allegation is that on 15.07.2002 at about 6.10 p.m., the appellant was found in possession of five litres of arrack, in contravention of the provisions of the Abkari Act.

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Heard.

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The learned counsel for the appellant has argued that since there was inordinate delay in producing the sample before the court, the appellant is entitled to benefit of doubt. The learned counsel for the appellant has further argued that since there was inordinate and unexplained delay in conducting the investigation and filing the final report, the appellant is entitled to benefit of doubt on that ground as well. The learned counsel relied on the decision of this Court in Krishan H. Vs. State of Kerala [2015 (1) KHC

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CRL.A.No.684 of 2006

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822], to support his argument.

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The incident in this case was on 15.07.2002. PW1 stated that the contraband and the sample were produced before the Court on the same day. However, the copy of the Thondi Register transmitted to this Court would show that the contraband was received in the Court only on 18.07.2002. Paragraph 15 of the judgment of the Trial Court would also show that the contraband and the sample were received in the Court only on 18.07.2002. The delay as such is not always fatal to the prosecution case. However, even if the delay is for one day, if it is not explained, the same is no doubt fatal to the prosecution case. In this case, no explanation was given by PW1 as to why there was delay from 15.07.2002 to 18.07.2002 in producing the contraband and the sample before the Court. There is also no evidence to prove the safe custody of the contraband and the sample till their production before the Court. Since there was no explanation for the delay from 15.07.2002 to 18.07.2002 in producing the contraband and

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CRL.A.No.684 of 2006

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the sample before the Court, there cannot be any guarantee that the sample produced before the Court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly when there is no evidence with regard to the safe custody of the sample till its production before the Court. In the said circumstances, the appellant is entitled to benefit of doubt.

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Even though the incident in this case was on 15.07.2002, the final report was filed before the Court by the Investigation Officer, after completion of investigation, only on 13.10.2004. Thus, there was a delay of nearly two years and three months in conducting the investigation and filing the final report before the Court. In Krishnan [supra], this Court held that the inordinate delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution case. In this case, no explanation was given by the prosecution for the long delay in conducting the investigation and filing the final report before the Court. For the said reason also, the appellant is

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CRL.A.No.684 of 2006

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entitled to benefit of doubt.

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In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

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Sd/-

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B.SUDHEENDRA KUMAR

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JUDGE

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kmd

Sreenivasan @ Subramanian v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sreenivasan @ Subramanian v. State of Kerala

Case brief

What is this about?

What did the court decide?

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