Allowed

Vijesh P.M v. State of Kerala

Kerala HC8 Mar 2021CRL.A/1371/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal against a conviction for possession and transport of foreign liquor. The court held that the prosecution failed to explain the significant and unexplained delays in producing seized articles and forwarding samples for chemical analysis, rendering the evidence inadmissible.

What did the court decide?

Judgment in SC.No.624/2004 set aside; accused acquitted and set at liberty; bail bonds cancelled.

Vijesh P.M 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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MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

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CRL.A.No.1371 OF 2006

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AGAINST THE JUDGMENT IN SC.NO.624/2004 DATED 15-06-2006 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC - I), KOZHIKODE

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APPELLANT/ACCUSED:

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VIJESH P.M AGED 32 YEARS S/O. VIJAYAN, PURATHIYATHMEETHAL HOUSE, PANIYANNOOR, THALASSERY.

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BY ADV. SRI.P.R.SREEJITH

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RESPONDENT/COMPLAINANT:

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

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BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1371 OF 2006

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JUDGMENT

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Dated this the 8^th day of March 2021

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The accused in SC.No.624/2004 on the file of the Court of

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Additional District and Sessions Judge, Fast Track, (Adhoc-I), Kozhikode has filed this appeal being aggrieved by the judgment dated 15.06.2006 whereby he has been found guilty of offence under section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay of fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.

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The case of the prosecution is that on 17.08.2002 the Sub Inspector of Police, Nadapuram and his party, who were in law and order duty, had inspected the vehicles coming through Kaypanachi from Peringathur. It is stated that they found that in an Autorickshaw driven by the accused, a cardboard box had been kept underneath the seat of the driver and two other cardboard boxes in the back side, and that the boxes contained 48 bottles of 180 ml Royal Gold cup Whisky and 48 bottles of 180 ml Mcdowell brandy. Accused did not have any documents for possession and transporting of these articles. The accused was arrested, the contraband was seized and after taking sample from two bottles, the accused and the contraband were taken

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CRL.A.No.1371 OF 2006

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to the Police Station and a case was registered against him. After completion of the investigation, the Sub Inspector, Nadapuram Police Station laid the final charge before the Judicial Magistrate of the First Class, Nadapuram. The learned Magistrate took the case on file as CP.No.74/2003. The case was then committed to the Court of Sessions, Kozhikode from where it is made over to the Assistant Sessions Judge, Vadakara for trial and disposal. The case was later recalled by the Sessions Judge and made over to the Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode for trial and disposal. The charge was framed under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. On the side of the prosecution PW1 to PW4 were examined and Exts.P1 to P8 were marked. MO1 series to MO3 series were identified. The trial Court on the basis of evidence on record, found the accused guilty of the offences charged and imposed the sentence aforesaid.

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Heard Shri.P.R.Sreejith, learned counsel on behalf of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the the State.

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The counsel for the appellant submits that there is unexplained delay in sending the sample allegedly seized from the appellant for chemical examination. Ext.P1 is the arrest memo and

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CRL.A.No.1371 OF 2006

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Ext.P2 is the Inspection memo both dated 17.08.2002 which is alleged to be the date of offence. Ext.P3 is the seizure mahazar prepared on 17.08.2002, Ext.P4 is the FIR and Ext.P6 is the list of the properties sent to the Magistrate and they are seen to have been received by the Junior Superintendent of the Judicial First Class Magistrate's Court, Nadapuram on 06.09.2002, which is 20 days after the seizure. Ext.P7 which purports to be the forwarding note says that the articles were received on 06.09.2002. It would appear from the seal on the first page that the forwarding note was received on 29.11.2002 at the office of the Judicial Magistrate. On the second page, Judicial Magistrate has initialed the forwarding note but no date is seen written to show the date on which the initial was placed. There is another endorsement which indicated that the sample was dispatched along with the forwarding note on 03.01.2003. The certificate of the Chemical Examiner which is produced as Ext.P8 would show that the sample was received on 03.01.2003 along with a letter dated 03.01.2003 from the Judicial First Class Magistrate's Court, Nadapuram. The above document will clearly show that there is delay in production of the articles seized before the court as well as delay in forwarding the articles from the Court for chemical examination. The delay abovesaid has not been explained in any manner by the

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CRL.A.No.1371 OF 2006

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prosecution. In paragraph 14 of the judgment, the Court below has considered the aspect for delay. The explanation given by PW1 is that Nadapuram area is tense area due to communal riots as well as political killings and that several criminal cases are pending in Nadapuram Police Station and it is due to the pendency of work, they could not produce the properties as and when detected. It is stated that on 04.09.2002, PW1 had entrusted the properties to the Investigation Officer and after preparing the documents, the properties were produced before the Court on 06.09.2002. The Court below has accepted this explanation. This Court has held in several decisions that the pressure of work cannot be a reason to justify the delay in producing the seized articles before the Court. As such, I do not find any justification for the long delay in produci ng the articles before the Court. Apart from this, there is absolutely no explanation regarding the delay in forwarding the samples to the Chemical Examiner. As already stated Ext.P7 forwarding note does not even bear a date. So also it is not discernible as to when exactly the request for chemical examination was made. It is only from the seal of the Court of Judicial Magistrate that one can find that the forwarding note had reached on 29.11.2002, which itself is two months and 23 days after the properties were produced before the Court. The above

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CRL.A.No.1371 OF 2006

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said delay has not been explained in evidence. So also, there is no explanation for the delay between 29.11.2002 and 03.01.2003 on which date the articles were seen to have been dispatched to the Chemical Examiner. This delay is also not explained.

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In the above circumstances, the prosecution has to fail and the appellant is entitled to succeed in this appeal. The consequences of delay has been emphasized in several decisions of this Court [See Ravi V. State of Kerala [2018 (5) KHC 352] ; Ramankutty V. Excise Inspector [2013 (3) KHC 308]; Balachandran V. State of Kerala [2020 (3) KHC 697]; Sukumaran v. State of Kerala [2019 (3) KLT 920] Anil Kumar v. State of Kerala and another [2020 (4) KHC 174].

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In the result, the judgment dated 15.06.2006 in SC.No.624/2004 on the file of the Court of Additional District and Sessions Judge Fast Track, (Adhoc-I), Kozhikode is set aside. The accused is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Vijesh P.M v. State of Kerala

Case brief

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Vijesh P.M v. State of Kerala

Case brief

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