Allowed

Kunhan v. State of Kerala

Kerala HC4 Mar 2021CRL.A/1438/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appellant's criminal appeal challenging a conviction under the Abkari Act. The court set aside the conviction, acquitted the appellant, and noted failures in search-seizure procedure mandated by the Abkari Act.

What did the court decide?

The impugned judgment was set aside. The appellant was acquitted and set at liberty, and attorney's bond, if executed, was cancelled.

Kunhan Vs State of Kerala — Criminal Trial and Appeal | 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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THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

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CRL.A.No.1438 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC.NO.120/2005 DATED 18-07-2006 OF THE COURT OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III (ADHOC), MANJERI

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APPELLANT/ACCUSED:

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KUNHAN S/O KARIPPA, MATTAYI HOUSE, CHATHAKKAD HARIJAN COLONY, THIRUVALI, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT/STATE:

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STATE OF KERALA REP.BY THE EXCISE INSPECTOR, MANJERI EXCISE RANGE – THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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BY SMT . SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1438 OF 2006

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JUDGMENT

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Dated this the 4^th day of March 2021

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The accused in SC.No.120/2005 on the file of the Additional

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Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri has filed this appeal challenging the judgment dated 18.07.2006, whereby the appellant was found guilty of offences punishable under Section 55(g) of the Abkari Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo simple imprisonment for another three years.

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The case of the prosecution is that, on 10.05.2003 at about 11.45 a.m, the accused was found in possession of 16 litres of wash allegedly kept for manufacturing illicit liquor, in his house situated in a Colony at Chathakkad. According to the prosecution, the house of the accused was searched along with two independent witnesses and wash was found in a plastic bottle in the corner of the veranda of the house.

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It is stated that the accused was arrested and 500ml of wash was taken in a 750ml bottle and sealed and the signature of the witnesses and the accused were obtained. The balance quantity of wash was stated to have been destroyed at the spot. Before the Court below, PW1 to PW7 were examined to prove the prosecution case and Exts.P1

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CRL.A.No.1438 OF 2006

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to P14 were marked and MO1 has been identified. On appreciating the evidence on record, the Court below found the appellant guilty and imposed the sentence as aforesaid.

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Heard. The appellant has raised several contentions and seriously disputed the seizure of the contraband articles. It is submitted that the house number shown in Ext.P1 search memo and Ext.P4 scene mahazar and the one shown in Ext.P11 ownership certificate vary and even the name of the appellant is totally different. Another contention put forth by the appellant is that, there is considerable delay in producing the contraband articles before the Court and the said delay is not explained. It is also contended that the mandatory requirements in the matter of search and seizure of the contraband and sealing and sampling of the contraband have not been followed.

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I find considerable force in the arguments advanced by the counsel for the appellant. A reading of the judgment and appendix would show that case of the prosecution suffers from several infirmities. Admittedly, the entire contraband articles except the sample said to have been collected was destroyed on the spot. The incident had occurred on 10.05.2003. Section 53A lays down the procedure that has to be followed while disposing of seized articles. It

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CRL.A.No.1438 OF 2006

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would appear from the records of the case that the said procedure has not been followed. No inventory list is seen to have been taken and no certification of the inventory is seen to have been taken from the Magistrate. So also, the sample was taken without the certification and the articles were disposed of without complying sub-clauses (a), (b) and (c) of Section 53A(2) of the Abkari Act. Without the material object which has been seized, there can be no prosecution against the appellant. It has been categorically held by this Court in several judgments that if the procedure contemplated in Section 53A is not strictly and scrupulously followed, even the seizure of the liquor becomes doubtful. (See Balakrishna Rai v. State of Kerala 2020(3) KHC 286, Damodaran v. Station House Officer and another 2007(4) KHC 936, Appu v. State of Kerala 2016(5) KHC 310 ) Since the said mandatory requirements have not been followed, the accused is entitled to the benefit of doubt.

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Further it is seen that the requisition for chemical analysis is seen marked as Ext.P8 which bears the date 10.05.2003. The date on which the Magistrate has affixed the signature is not seen written along with the initial of the Magistrate. As such, it is not clear as to when exactly the sample was taken from the Court to the chemical analyst. Ext.P10 report of the chemical analyst further shows that the

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CRL.A.No.1438 OF 2006

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articles were received only on 04.06.2003 which is almost one month after the incident and Ext.P8 requisition. Such a delay is also a factor which stands against the prosecution.

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In the above circumstances, I find that the appellant is entitled to succeed in this appeal. The judgment dated 18.07.2006 in SC.No.120/2005 of the Additional Sessions Judge Fast Track Court No III (Adhoc), Manjeri is set aside. The appellant is acquitted and set at liberty. Bail bond if any executed by the appellant or on his behalf is cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Kunhan v. State of Kerala

Case brief

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Kunhan v. State of Kerala

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