Allowed

Ravi, S/O. Velayudhan, v. State of Kerala

Kerala HC8 Dec 2020CRL.A/2483/2007

Case brief

AI extract

What is this about?

Criminal appeal against conviction under the Abkari Act for possession of illicit arrack. The High Court acquitted the appellant because the preventive officer failed to take the mandatory second sample, rendering the prosecution case lacking in confidence and warranting benefit of doubt.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bonds cancelled; fine refunded if remitted.

Ravi, S/O. Velayudhan, Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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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 BECHU KURIAN THOMAS

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TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942

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CRL.A.No.2483 OF 2007

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AGAINST THE ORDER/JUDGMENT IN SC 214/2005 DATED 23-11-2007 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD

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APPELLANT/ACCUSED:

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RAVI, S/O. VELAYUDHAN, ARANIPADATH HOUSE, KADAMPAZHIPPURAM AMSOM, PULLUNDASSERI DESOM, OTTAPPALAM.

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BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE

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RESPONDENT/COMPALAINANT:

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STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE EXCISE RANGE OFFICE, OTTAPALAM.

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R1 BY PUBLIC PROSECUTOR

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PP REKHA C NAIR., APP. MONISHA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2483 OF 2007

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JUDGMENT

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Dated this the 8^th day of December 2020

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The accused in S.C.No.214/2005 on the files of

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Additional Sessions Judge, Fast Track court -III, Palakkad is the appellant. The appellant was convicted by judgment dated 23.11.2007 to undergo imprisonment for two years and to pay a fine of Rs.1 lakh for the offence under Section 55 (a) of the Abkari Act, 1077( for short 'the Act').

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The case of the prosecution is that, on 18.7.1998 at about 5.p.m the accused was found carrying 4 liters of illicit arrack in a can

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through the northern bund of Kanjirappuzha canal. On verifying the contents of the can it was found

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to be arrack and hence after completing the

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investigation final report was filed for the offence under Section 55 (a) of the Act. The

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accused was later committed to the Court of

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Sessions Palakkad for trial.

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In order to prove the prosecution case, Pws

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1 to 4 were examined and Exts.P1 to P8 were marked

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CRL.A.No.2483 OF 2007

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apart from material object MO1.

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The Sessions Judge after analysing the

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evidence adduced, came to the conclusion that the

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accused was guilty of the offence alleged and taking note of the fact that the accused had three young children all below the age of ten years, he

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was sentenced to two years simple imprisonment and a fine of Rs.1 lakh in default of which to undergo a further imprisonment for six months.

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I have heard Adv.Monisha K.R for the

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appellant as well as the learned Government

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Pleader Smt.Rekha C.Nair on behalf of the respondent.

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The main point canvassed by Adv.Monisha

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was that it is the right of every accused to have the benefit of the two samples prescribed by the

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statute to be taken at the time of sampling. In

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the instant case since only one sample was admittedly taken by the preventive officer the

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accused had been prejudiced and the same ought to

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CRL.A.No.2483 OF 2007

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result in his acquittal. He further submits that,

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if the accused wanted to send the 2^nd sample for examination which is a safe guard provided under

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the statute for the benefit of the accused. The

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court is bound to direct such an examination of the second sample. In the absence of such a second

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sample, the entire trial will be prejudicial to the accused. Adv. Monisha referred to an unreported decision of this Court in

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Crl.A.No.47/2006 wherein an identical question was

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considered and the court taking note of the

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absence of a second sample acquitted the accused of the charged leveled against him.

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From a perusal of Ext.P1 Mahazar and

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Ext.P3 property list, it is clear that only one

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sample was taken. PW1 during his chief examination

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also has no case of a second sample having been

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taken. It has also come out in evidence that the

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sample bottle was carried by PW, even before the crime was detected. Even MO, can did not contained

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any liquid at the time of evidence, though it is

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CRL.A.No.2483 OF 2007

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deposed by PW, that the can leaked while it was in

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Court. In such circumstances, in the absence of a second sample having been taken, I find force in

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the contention of the counsel for the appellant that prejudice has been caused to the accused. A second sample as required by the Excise Manual could have rendered a fair trial and inspired confidence in prosecution case.

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The learned Government Pleader on the

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other hand submitted that the accused did not have case in the Trial Court that he was prejudiced on account of the absence of the second sample and

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not even a question was put to PW1 during his cross examination.

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It is true that the accused has not taken

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a contention regarding any prejudice caused to him

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due to the absence of the second sample having been taken. However, law mandates that the second

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sample ought to be taken. In this context it is beneficial to refer to the observations of this

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CRL.A.No.2483 OF 2007

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Court in Crl.A.No.47/2006 which is as follows;

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“As per the provisions of the Abkari Act and Excise Manual, the officer concerned is bound to take minimum of two samples. This is a mandatory provision. In the case on hand, only a single sample had been taken and there is also controversy regarding the seal affixed on the sample.

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The insistence for taking two sample has a purpose to serve. If the accused feels that the first sample sent for examination was not sufficient or that there is some defect, of course he can seek the court to sent the second sample for examination. That is a safeguard given to the accused which cannot be denied at all by taking only one sample. It is clear that PW1 had taken only one. It has been held by this Court that violation of such provision is fatal.”

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In view of the observation of this Court

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in the above said decision, taking of second

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sample is a safe guard provided to the accused and the absence of such a procedure creates a doubt in

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the prosecution case, in the facts and evidence arising in this case. The prosecution case does not inspire confidence and the accusesd is

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entitled to the benefit of doubt. Hence, the accused is given the benefit of doubt and accordingly he is acquitted.

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In the result, appeal is allowed by setting aside the conviction and sentence in judgment dated 23-11-2007 in SC No. 214 of 2005 on the file

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of the Additional Sessions Judge Fast Track Court

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CRL.A.No.2483 OF 2007

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No.III, Palakkad. The accused is set at liberty.

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The bail bonds executed are cancelled. Fine amount

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if remitted shall be refunded.

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Sd/-

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BECHU KURIAN THOMAS

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JUDGE

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SSK/08/12

Ravi, S/O. Velayudhan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ravi, S/O. Velayudhan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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