Allowed

Sukumaran @ Hanuman v. the State of Kerala

Kerala HC4 Mar 2021CRL.A/1624/2006

Case brief

AI extract

What is this about?

In this criminal appeal against a conviction under the Abkari Act for illicit arrack manufacturing, the High Court of Kerala allowed the appeal and acquitted the appellant. The Court held that the prosecution failed to strictly follow the mandatory procedure under Section 53A of the Abkari Act, specifically regarding the preparation of inventory and submission of forwarding notes, rendering the ev

What did the court decide?

The judgment of the Additional Sessions Court is set aside. The appellant is acquitted and set at liberty. Bail bonds are cancelled.

Sukumaran @ Hanuman Vs the State of Kerala — Cheque Dishonour | 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.1624 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 794/2001 DATED 14-08-2006 OF ADDITIONAL SESSIONS COURT-TRIAL OF ABKARI ACT CASES, NEYYATTINKARA

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APPELLANT/ACCUSED:

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SUKUMARAN @ HANUMAN AGED 52 YEARS S/O.AYYAPPAN NADAR, BAIJU BHAVAN, NILAMEL, KALLIKADU.

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BY ADVS. SRI.JOHN K.GEORGE SRI.P.K.VARGHESE

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RESPONDENT/COMPLAINANT:

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THE STATE OF KERALA REPRESENTED BY THE 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 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1624 OF 2006

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JUDGMENT

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The 4^th accused in S.C.No.794/2001 on the file of

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the Additional Sessions Court for trial of Abkari Act cases, Neyyattinkara, has filed this appeal, being aggrieved by the judgment dated 14.08.2006, whereby he has been found guilty of offence under Sections 58 & 55(g) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of 1,00,000/- and in default of₹ payment of fine, to undergo rigorous imprisonment for a period of 6 months.

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2. The case of the prosecution is that CW5 the Sub

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Inspector of Police, Neyyar Dam Police Station, on 26.06.1999 at about 5.00 a.m. received information over phone that arrack was being manufactured at the place Neduvaltheri Paramadankonam and when he reached the place at about 6.00 a.m., he found accused 1 to 4 engaged in distillation of arrack, using aluminium pots fitted with equipments for distillation placed on the

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CRL.A.No.1624 OF 2006

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fire hearth and that one among the accused was apprehended, while others took to their heels. It is stated that on searching the place, 2 aluminium pots of 40 litres capacity were placed on the fire, each containing about 10 litres wash, 2 black jerrycans of 20 litres size, each containing 15 litres of arrack, 2 brass vessels, one of 7 litres size and another of 5 litres size, placed above the pots etc. used for the purpose of manufacturing of arrack, were found and seized.

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3. According to the prosecution, admittedly an inventory mahazar was prepared on the spot and wash was destroyed after taking sample from it. It is stated that CW5 effected seizure of thondi articles, which included samples of wash in 2 bottles each of 750 ml size and the utensils referred above. Exts.P1 to P13 were marked on the side of the prosecution and Exts.D1 to D3 series were marked on the side of the defence.

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PW1 to PW5 were examined on the side of the prosecution. DW1 to DW3 were examined on the side of

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CRL.A.No.1624 OF 2006

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the defence.

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4. The trial court found that the prosecution has

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succeeded in establishing that the 4^th accused was engaged in the manufacturing of illicit arrack. The prosecution could not succeed in establishing the charges against accused Nos.1 to 3. The trial court

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imposed the sentence referred above. The 4^th accused is hence before this court in appeal.

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5. Heard the learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor.

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6. The main contentions raised in the appeal are that PW1 and PW2 are not independent witnesses as contemplated under Section 36 of the Abkari Act and that they are members of another wing of the Police force (Warden of Open Jail), that there is violation of the procedure prescribed in Section 53A of the Abkari Act, since according to the prosecution, the sample was taken on the spot and wash and other materials were immediately destroyed and that going through the records it is seen that a forwarding note has not been

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CRL.A.No.1624 OF 2006

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marked in the case as an exhibit.

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7. After considering the contentions raised by the counsel for the appellant and on verification of the records, I find that the prosecution has not complied with the procedure laid down in Section 53A of the Abkari Act for the purpose of disposal of seized

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liquor, intoxicated drugs or articles. There is no inventory list prepared and application made before the Magistrate for the purpose of certifying the correctness of the inventories. Admittedly the wash and other materials were destroyed at the spot itself and an inventory mahazar alone was prepared by the officer who detected the offence. It is also seen that even though a sample was said to have been drawn at the spot, there is no forwarding note available in the file along with which the said sample was sent for chemical examination.

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8. It is well settled by several decisions of this Court that the absence of producing and marking of forwarding note is fatal to the prosecution and in such

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CRL.A.No.1624 OF 2006

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cases, the accused are entitled to be acquitted. See Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KHC 455) and Sadasivan @ Para V. State of Kerala reported in (2020 KHC 478) . So also, it has been categorically held by this Court in several judgments that if the procedure contemplated in Section 53A is

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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] . The provisions contained in Section 53A(5) whereby the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub-sections (2) & (4) and certified by the Magistrate are to be treated by the court trying an offence under the Act, as primary evidence in respect of such offence becomes meaningless unless the procedure prescribed is strictly followed. Suffice to say that even the primary evidence, which is

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CRL.A.No.1624 OF 2006

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contemplated under Section 53A is not available in this case.

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In the result, the judgment of the Addl. Sessions Court (for trial of Abkari Act cases), Neyyattinkara in S.C.No.794/2001 dated 14.08.2006 is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf is cancelled. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Sukumaran @ Hanuman v. the State of Kerala

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Sukumaran @ Hanuman v. the State of Kerala

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