Allowed

Kandumuthan, v. State of Kerala

Kerala HC9 Mar 2021CRL.A/1244/2006

Case brief

AI extract

What is this about?

In criminal appeal under Section 58 of the Abkari Act, the High Court allowed the appeal and acquitted the appellant. The court held that fatal delays in producing seized materials and failure to explain safe custody rendered the prosecution evidence inadmissible.

What did the court decide?

The judgment of the Sessions Court is set aside, appellant is acquitted and set at liberty, bail bonds cancelled.

Kandumuthan, Vs State of Kerala — Narcotics (NDPS) | 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 T.R.RAVI

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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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CRL.A.No.1244 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 728/2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT-II, PALAKKAD

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APPELLANT/ACCUSED NO.1:

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KANDAMUTHAN, AGED 41 YEARS, S/O.CHUNDAN, MAVADI VEEDU, CHITHALI, KUZHALMANNAM.

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BY ADVS. SRI.P.M.RAFIQ

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RESPONDENT/COMPLAINANT - STATE:

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STATE OF KERALA

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

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BY PUBLIC PROSECUTOR SMT. SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1244 OF 2006

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JUDGMENT

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Dated this the 9th day of March 2021

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The 1^st accused in S.C.No.728/2005 of the Additional Sessions Judge, Fast Track Court No.II, Palakkad has filed this appeal being aggrieved by the judgment dated 09.06.2006, whereby he has been found guilty of offence under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of 1,00,000/- and in default of payment of fine₹ to undergo simple imprisonment for a further period of 4 months.

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2. The case of the prosecution is that on 06.10.2003 at about 7.55 hours, the accused was found in possession of illicit arrack in 2 black plastic cans of 5 litre each, kept in the kitchen of a residential

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house bearing No.XIII/300 of Kuzhalmannam Panchayat which belonged to the 1^st accused. Before the court below, the prosecution examined PWs1 to 9 and Exts.P1

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to P10 were marked. MO1 to MO4 series were identified and marked. On the basis of the evidence on record,

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CRL.A.No.1244 OF 2006

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the court below found the appellant guilty of offence under Section 58 and imposed the sentence referred above.

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3. Heard Sri.P.M.Rafiq, learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

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4. The appellant contends that there is no evidence to link the offence to him and the entire investigation was carried out in illegal manner. It is submitted that the search was conducted without a search memo and the evidence in that regard is also contradictory. It is further submitted that even though Ext.P2 search list is stated to have been sent to the court along with the accused on the very same day of detection of offence, it can be seen from the received seal of the court that the same was received

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only on the next day. According to the appellant, going by the records it is obvious that the seized articles were not produced before the court on the very

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same day, but only on the next day. It is further

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CRL.A.No.1244 OF 2006

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submitted that there is no explanation regarding the manner in which the seized articles were kept in safe custody during the interregnum. Going through the records of the case and the contentions raised by the appellant, the forwarding note Ext.P6 shows that it was prepared on 18.10.2003 and there is absolutely no explanation as to the safe custody of the seized articles and the sample between 06.10.2003, on which date it was seized and 18.10.2003, on which date the forwarding note was sent requesting for forwarding the sample to the Chemical Examiner. Apart from the said delay of 12 days, it is further seen that the sample

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was forwarded along with a letter from the Judicial First Class Magistrate, which is dated 22.10.2003, another 4 days after the forwarding note was sent to the court. It has been held in several decisions of this court that in cases of such nature, delay in production of the seized materials before the court and failure to explain the nature of the safe custody of

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the articles with the detecting officer and the delay

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CRL.A.No.1244 OF 2006

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in preparing and sending the forwarding note are all fatal to the prosecution. [See Ravi v. State of Kerala (2018 (5) KHC 352) & Ramankutty v. Excise Inspector (2013 (3) KHC 308) ].

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In the light of the above legal position and the admitted facts of this case, the appellant is entitled to succeed. The judgment dated 09.06.2006 of the Additional Sessions Court, Fast Track Court No.II, Palakkad in S.C.No.728/2005 is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Kandumuthan, v. State of Kerala

Case brief

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Kandumuthan, v. State of Kerala

Case brief

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