Allowed

Vijaya Naik v. State of Kerala

Kerala HC12 Mar 2021CRL.A/1175/2006

Case brief

AI extract

What is this about?

Kerala HC allowed criminal appeal against conviction under Abkari Act for transporting illicit liquor. Court acquitted appellant due to fatal delays in producing seized articles, discrepancies in property lists, and lack of explanation regarding custody, citing precedent that unexplained delay is fatal.

What did the court decide?

Impugned judgment set aside; appellant acquitted and set at liberty; bail bonds cancelled; deposit of 50,000 returned upon application.

Vijaya Naik Vs State of Kerala — Kerala HC (2021) — LawSathi Research

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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 T.R.RAVI

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FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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CRL.A.No.1175 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 137/2005 DATED 25-04-2006 OF ADDITIONAL SESSIONS COURT (ADHOC 1), KASARAGOD

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AGAINST THE ORDER/JUDGMENT IN CP 294/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD

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APPELLANT/ACCUSED NO.1:

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VIJAYA NAIK AGED 38 YEARS S/O.KRISHNA NAIK, NEAR GUDDE TEMPLE, KUDLU VILLAGE.

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BY ADV. SRI.I.V.PRAMOD

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RESPONDENT/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SMT.SYLAJA.S.L

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1175 OF 2006

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JUDGMENT

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Dated this the 12th day of March 2021

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The 1^st accused in S.C.No.137/2005 on the file of the Additional Sessions Court (Adhoc 1), Kasaragod has filed this appeal being aggrieved by the judgment dated 25.04.2006 whereby he has been found guilty of offence under Section 55(a) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for a period

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of 2 years and to pay a fine of 1,00,000/- and in₹ default of payment of fine, to undergo rigorous imprisonment for a further period of 6 months.

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2. The case of the prosecution is that on 23.01.2003 at about 6.15 p.m., the appellant and the 2^nd accused were found in possession of 8 cases, each containing 12 bottles of IMFL having the brand name Columbia Whisky and 7 cases, each containing 12 bottles

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of Highway Fine Whisky and 20 bottles of Highway Fine Whisky which were not packed in cardboard cases. All the bottles are said to be of 750 ml capacity and

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CRL.A.No.1175 OF 2006

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produced in the State of Karnataka. The allegation is that the accused were transporting the liquor in a Fiat Car, CNO 2455, along Chawki-Kambar public road in Chawkikunnu Kudlu Village. It would appear from the records that Ext.P5, which is the seizure mahazar prepared at the time of the occurrence of the offence, has been signed by the Additional Sub Inspector of Kasaragod named T.V.Premnath, who has been examined as PW4. PW1 in his evidence says that he is the Additional Sub Inspector of Kasaragod and he took up the investigation on the next day on 24.01.2003. Ext.P3 is said to be the forwarding note and Ext.P4 is the chemical analysis report. Ext.P3 shows that it has been sent on 24.01.2003. It would appear from the seal of the court, which was affixed on Ext.P3 that the same was received in the court only on 30.01.2003. Even

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though the Judicial Magistrate is seen to have put his initial on Ext.P3, no dates have been written below the initials so as to indicate the day on which the initials were put and the materials were sent for

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CRL.A.No.1175 OF 2006

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chemical examination. PW1 has admitted during the cross examination that the properties were produced before the court only on 30.01.2003. No evidence is forthcoming regarding the manner in which the seized materials were kept in safe custody between 23.01.2003 on which day it was allegedly seized and 30.01.2003 on which day it was produced before the court below. Apart from that, it would appear from Ext.P4 which is the report of the Chemical Examiner that 6 sealed 750 ml bottles were received in the laboratory only on 26.04.2003, which is 3 months after the forwarding note Ext.P3. There is nothing in evidence to show that how the delay of 3 months occurred in forwarding the samples for chemical examination and as to how these samples were kept in safe custody. Since even the date on which the despatch is made is not clear from the documents produced before the court, it is not possible to know in whose hands these samples were during all these times. The lack of such material evidence creates serious doubt as to the question whether the

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CRL.A.No.1175 OF 2006

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sample which was examined by the Chemical Examiner was the one which was seized from the accused on the alleged date of occurrence of the offence. Apart from the above delay, there are other aspects which also casts serious doubts about the prosecution case. Ext.P2 is the property list along with which the seized

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articles were produced before the court. It is seen from Ext.P2 that the properties were seized on 17.01.2003 at about 3.15 p.m. The above entry does not

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in any way tally with the specific case of the prosecution that the offence was committed on 23.01.2003, which is 6 days after the seizure mentioned

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in Ext.P2. It is also seen from the endorsement in Ext.P2 that the properties which were produced before the court were returned to the S.I. of Police for safe custody on 06.02.2003. It is much after that the sample was received by the chemical examiner. Curiously, the material objects which have been marked as seen from the appendix of the judgment shows that MO1 series indicates only 5 cases of Columbia Whisky

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CRL.A.No.1175 OF 2006

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while as per the property list, there were 7 full cases and one case with 10 bottles, which were available. So

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also, one bottle is seen missing in the MO3 series also. At the same time, MO2 series would indicate that there are 7 full cases of Highway Fine Whisky while as per the property list what is produced was 6 full cases and one case with 10 bottles.

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3. It is well settled that in such cases, the

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delay in production of the seized articles before the court is fatal to the case of the prosecution. In Ravi V. State of Kerala [2018 (5) KHC 352] this Court while considering the delay of 4 days held that the absence of explanation even the delay of one day is fatal for the prosecution case.

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4. In Balachandran V. State of Kerala [2020 (3) KHC 697]) this court has considered the delay of 10 days and the same was found to be fatal for the prosecution. Similar views have been expressed by this Court in Ramankutty V. Excise Inspector (2013 (3) KHC 308) & Sukumaran V. State of Kerala (2019 (3) KLT 920) .

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CRL.A.No.1175 OF 2006

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In Anilkumar V. State of Kerala and Another (2020 (4) KHC 172) this Court held that the delay cannot be justified on the ground of pressure of work. In the evidence tendered by the prosecution, there is absolutely no explanation for the delay which has been referred to above. Regarding the delay in production of the property, which was on 30.01.2003, justification sought to be given by PW1 during the cross examination is the pressure of work and holidays which came in between. In Ext.P3 forwarding note, there is an endorsement that there are 2 forwarding notes. During the cross examination of PW1, he has stated that the said endorsement was not made by him and there was no

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such endorsement when Ext.P3 was submitted in the court. He has also stated that the details stated in the property list are correct.

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5. In the light of the serious discrepancies in the evidence tendered by the prosecution and the delay which is not properly explained, the appellant is entitled to be succeeded in this appeal.

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CRL.A.No.1175 OF 2006

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In the result, the judgment dated 25.04.2006 in S.C.No.137/2005 on the file of the Additional Sessions Court, Adhoc 1, Kasaragod is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. On 22.06.2006, this Court, while suspending the execution of the sentence, had directed the appellant to deposit a sum of 50,000/- before the₹ court below. The amount, if any, deposited pursuant to the said order will be returned to the appellant on proper application being filed before the court below. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Vijaya Naik v. State of Kerala

Case brief

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Vijaya Naik v. State of Kerala

Case brief

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