Allowed

Subbanna Shetty, S/O. Bhattu Shetty, v. the Excise Inspector

Kerala HC8 Apr 2021CRL.A/1484/2006

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal. The court held that the absence of an arrest memo and the dated forwarding note were fatal defects. Consequently, the prosecution case was vitiated, the conviction was set aside, and the appellant was acquitted.

What did the court decide?

The judgment dated 20.06.2006 in S.C.No.783/2004 is set aside. The appellant is acquitted and set at liberty. Bail bonds are cancelled.

Subbanna Shetty, S/O. Bhattu Shetty, Vs the Excise Inspector — 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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THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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CRL.A.No.1484 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 783/2004 DATED 20-06-2006 OF ADDITIONAL SESSIONS COURT (ADHOC 1), KASARAGOD

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AGAINST THE ORDER/JUDGMENT IN CP 167/2004 DATED 13-09-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD

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APPELLANT/ACCUSED:

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SUBBANNA SHETTY, S/O. BHATTU SHETTY, NEAR ICHILAMKODU VILLAGE OFFICE, KASARAGOD.

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BY ADVS. SRI.M.RAMESH CHANDER (SR.) SRI.BALU TOM

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RESPONDENTS/COMPLAINANT & STATE:

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1 THE EXCISE INSPECTOR, KUMBALA RANGE, KASARAGOD.

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

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BY PUBLIC PROSECUTOR SMT. S.L SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1484 OF 2006

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JUDGMENT

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Dated this the 8^th day of April 2021

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The accused in S.C.No.783/2004 on the file of the Additional Sessions Court (Adhoc 1), Kasaragod has filed this appeal being aggrieved by the judgment dated 20.06.2006, whereby he has been found guilty of offence under Section 55(a) of the Abkari Act and convicted and sentenced to undergo rigorous imprisonment for a period of 6 months 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 one month.

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2. The case of the prosecution is that on 22.12.2001 at 4.00 p.m., the accused was found in possession of 6 plastic bottles, each containing 750 ml of Indian Made Foreign Liquor produced in the State of Karnataka, which was being transported in a plastic bag along the public road in Kubannur Village. Before the court below, the prosecution examined PW1 to PW4 and Exts.P1 to P6 were marked. On the basis of the evidence on record, the court below found the accused

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CRL.A.No.1484 OF 2006

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guilty of offence, convicted him and imposed on him the sentence referred above.

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3. Heard Sri.Balu Tom, learned counsel on behalf

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of the appellant and Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the respondent.

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4. Learned counsel for the appellant submits that

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the incident is said to have happened on 22.12.2001, but the occurrence report has been prepared only on 23.12.2001. So also, the scene mahazar has been prepared by the Investigating Officer on 13.07.2004, almost 3 years after the incident. It is submitted that such a delay will fatally affect the prosecution case and the accused will be entitled to the benefit of

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doubt. No arrest memo has been produced by the prosecution before the Court below.

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5. Apart from the above facts, on going through

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the records, I find that the forwarding note has been prepared on 23.12.2001. But Ext.P4 forwarding note, which has been produced in the case, does not give any indication as to the day on which the sample was sent

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CRL.A.No.1484 OF 2006

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for chemical analysis. Even though the countersignature of the Magistrate is available in the form of an initial, no date has been written along with the initial indicating the date of despatch of the sample. It is seen from the property list, which is produced as Ext.P3 that the entire contraband articles, which were produced before the Court was returned on 01.01.2002 to the Excise Inspector, Kumbala for safe custody. Ext.P5 which is the report of the Chemical Examiner shows that the sample was received by him only on 09.01.2002. There is absolutely no explanation for the delay and regarding the safe custody of the contraband and the sample, after the same was returned from the court.

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This Court has held in the decision reported in Ramankutty V. Excise Inspector [2013 (3) KHC 308] that the failure to produce the arrest memo is fatal for the prosecution case. This Court has also held that the failure to write the date on which the Magistrate had countersigned the forwarding note is fatal for the prosecution case. [See Kumaran v. State of Kerala

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CRL.A.No.1484 OF 2006

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(2016 (4) KLT 718)] . The delay in conduct of the investigation is also a fact, which favours the accused. Non-production of the arrest memo has also been held by this Court to be fatal for the prosecution case as there is no proof regarding the factum of arrest in the manner and at the time and place alleged

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by the prosecution. (See Ramankutty v. Excise Inspector [2013 (3) KHC 308])

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6. In the above circumstances, the appellant is entitled to succeed in this appeal. The judgment dated 20.06.2006 in S.C.No.783/2004 on the file of the Additional Sessions Court (Adhoc 1), Kasaragod 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.

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This appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Subbanna Shetty, S/O. Bhattu Shetty, v. the Excise Inspector

Case brief

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Subbanna Shetty, S/O. Bhattu Shetty, v. the Excise Inspector

Case brief

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