Allowed

Biju, v. State of Kerala

Kerala HC2 Feb 2021CRL.A/1108/2007

Case brief

AI extract

What is this about?

This court allowed the criminal appeal against conviction and sentence for possessing foreign liquor under the Abkari Act. The High Court held that the unexplained delay in producing seized contraband and the non-production of forwarding notes rendered the prosecution case unworthy of belief, warranting acquittal.

What did the court decide?

Conviction and sentence set aside; accused acquitted; bail bond cancelled if furnished; fine refunded if remitted.

Biju, Vs State of Kerala — Corruption | Kerala HC (2021)

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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 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

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CRL.A.No.1108 OF 2007

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AGAINST THE JUDGMENT IN SC 132/2002 OF ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA

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APPELLANTS/ ACCUSED :

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1 BIJU, S/O.JANARDHANAN, KALLUVILA VEEDU, THAZHEKKADAVATHUKKAL, PLACHERRY WARD, VALACODU VILLAGE, KOLLAM DISTRICT.

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2 SARADANANDAN @ REMESAN, S/O.CHELLAPPAN, MADA AYYATHU VEEDU, VILAKKUVATTOM MURI, VALACODU VILLAGE, KOLLAM DISTRICT.

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BY ADVS. SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON

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RESPONDENT/ COMPLAINANT :

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STATE OF KERALA, REP.BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SYLAJA S.L.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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CRL.A.No.1108 OF 2007

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JUDGMENT

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Dated this the 2^nd day of February 2021

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Appellants challenge the conviction and sentence imposed

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in SC.No.132/2002 on the files of the Additional Sessions Court (Abkari cases), Kottarakkara. As per the judgment dated 25.05.2007, the appellants were convicted for the offence punishable under Sections 55(a) and (i) of the Abkari Act, 1077 (for short, 'the Act').

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The prosecution case was that on 25.01.2000, in the

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early morning hours, at 1.05 a.m., the accused were found in possession of 168 bottles of New Mater XXX Rum foreign liquor intended for sale and in transit in the dicky of an ambassador car bearing No.KL/02/A/8244. The car was driven by the 2^nd accused while the first accused was a passenger. The vehicle was stopped and the contraband articles were seized after apprehending the accused. Crime No.67/2000 of the Punalur Police Station was registered and after completion of investigation, final report was filed before the Magistrate's Court, who, on realising that it is an offence

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CRL.A.No.1108 OF 2007

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triable exclusively by the Court of Sessions, committed the same under Section 209 Cr.P.C. to the Sessions Court, Kollam. The case was thereafter transferred to the Additional Sessions Court for Abkari cases.

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In order to prove the prosecution case, PWs 1 to 8 were examined and Exts.P1 to P10 were marked, apart from material objects as MOs 1 to 8. The defence examined DW1 to prove the defence version.

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After appreciating the evidence adduced in the case, the learned Sessions Judge found the accused guilty and sentenced them to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- each, in default to undergo simple imprisonment for six months for the offence under Section 55(a) of the Act.

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I have heard the learned counsel for the appellants as well as the learned Public Prosecutor Adv.Sylaja S.L.

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On a perusal of the facts arising in the case, it is

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noticed that even though the seizure of the contraband articles were made on 25.01.2000, the same were produced in court only on 21.02.2000. PW7, who was the investigating officer, in his evidence stated that he had produced contraband articles before the

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CRL.A.No.1108 OF 2007

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Magistrate's Court immediately and the same were directed by the court to be kept in the safe custody of the police. Even though he attempted to explain the delay in producing the contraband articles before the court, the documents produced and marked before court do not evidence any material to support the deposition of PW7. If the court had returned the material objects back to the police, the same should have reflected in the documents marked in the court below. Not a single document shows that material objects in the instant case were produced before the court at any period of time prior to 21.02.2000. In such circumstances, the delayed production of the contraband articles is left unexplained and that creates doubt on the prosecution story.

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Yet another surprising feature of this case is that, even

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though the sample of contraband articles were sent for chemical analysis, the forwarding note has not been marked in evidence. It is settled through numerous decisions that the failure to produce the forwarding note renders the entire prosecution case unworthy of belief and the accused is entitled to get the benefit of such failure. Reference in this context is invited to the recent decision in Sadasivan @ Para v. State of Kerala and Another [2020 KHC 478] wherein it has been reiterated that non-production of the

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CRL.A.No.1108 OF 2007

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forwarding note is fatal to the prosecution and that alone is a sufficient ground to acquit the accused.

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In the instant case on account of the delayed production of the contraband seized before the court and on account of the failure of the prosecution to produce and mark the forwarding note before the learned Sessions Court, I am of the view that the prosecution story does not inspire confidence and the accused are entitled to be acquitted.

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In the above circumstances, the conviction and sentence

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imposed on the accused by judgment dated 25.05.2007 in SC.No.132/2002 on the files of the Additional Sessions Court (Abkari cases), Kottarakkara is liable to be set aside and the accused are acquitted. The bail bond, if any furnished by the accused shall stand cancelled and the fine amount, if remitted shall be refunded forthwith.

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The Criminal Appeal is allowed as above.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

Biju, v. State of Kerala

Case brief

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Biju, v. State of Kerala

Case brief

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