Allowed

Venugopalan v. State of Kerala

Kerala HC16 Mar 2021CRL.A/2076/2006

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the conviction and sentenced under the Abkari Act due to unexplained delay in investigation and failure to produce a property list and properly counter-signed forwarding notes, granting the accused the benefit of doubt.

What did the court decide?

Accused acquitted and set at liberty; impugned judgment set aside; bail bonds cancelled; Rs.10,000 deposit refunded.

Venugopalan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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CRL.A.No.2076 OF 2006

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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 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

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CRL.A.No.2076 OF 2006

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AGAINST THE JUDGMENT IN SC 340/2005 DATED 22-09-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI

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CP 33/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR

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APPELLANT/ACCUSED:

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VENUGOPALAN

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S/O.NARAYANAN, KODALAMKUZHI KARIYOT HOUSE, NADUVATTOM AMSOM, NAGAPARAMBA DESOM.

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY EXCISE CIRCLE INSPECTOR, KUTTIIPPURAM, EXCISE RANGE, 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 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2076 OF 2006

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JUDGMENT

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Dated this the 16^th day of March, 2021

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The accused in S.C.No.340/2005 on the file of the Court of the Additional District and Sessions Judge (Adhoc II), Manjeri has filed this appeal being aggrieved by the judgment dated 22.09.2006, whereby he was found guilty of offence under Sections 8(1) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one yer and to pay a fine of Rs.1,00,000/- (one lakh) and in default of payment of fine, to undergo rigorous imprisonment for a further period of four months.

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The case of the prosecution is that on 27.10.2003, the accused was found in possession of illicit arrack. It is stated that PW1 who detected the offence had taken sample of 200ml of the arrack in a 375ml bottle a nd the balance which was in a can had been sealed and seized. The seizure mahazar was prepared, the accused was arrested and the thondi articles and documents along with the accused were

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CRL.A.No.2076 OF 2006

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brought to the Excise Range Office and the case was registered. Investigation was conducted by the Excise Range Inspector, Kuttippuram and charge was laid against the accused. On the basis of the evidence on record, the court below found the accused guilty of the offence and imposed the sentence as aforesaid.

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Heard Sri Sunny Mathew, learned counsel on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

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The learned counsel for the appellant contends that the forwarding note which has been produced as Ext.P4, though bears the date '28.10.2003', shows that the sample had been despatched only on 05.11.2003. It is contended that the said delay in sending the sample for chemical analysis is fatal. It is seen from the records that no property list was prepared and produced before the court so as to ensure that seized articles were actually produced before the court. As such, there was no materials available in the evidence before the court to show that the property was actually produced, except the scene mahazar which shows the seizure. The

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CRL.A.No.2076 OF 2006

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evidence tendered by the Officers also does not show that the property list was ever prepared. As such, it was not possible to know where exactly the thondi articles were kept and whether it was produced before the court. The delay in forwarding the articles for chemical analysis also enhances the doubt, because it is seen from the document that an initial had been put by the Judicial First Class Magistrate, Tirur at the bottom of the document. However, it appears that the concerned Clerk had made entries regarding the date of despatch and the specimen seal of the court. It is thus not clear whether the initial of the Magistrate was also put on the very same date, i.e., 05.11.2003. It is also in evidence that even though a black plastic can of 5 litre capacity was produced as MO1, it did not contain any arrack and the official has only stated that leak is seen in the can. Thus, this is a case where the seized material is not available before the court.

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Another contention that is put forward by the

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learned counsel is that there is unexplained delay in the completion of the investigation of the case, which, as has been

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CRL.A.No.2076 OF 2006

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held by this Court in the decision in Kumaran v. State of Kerala [2016 (4) KLT 718] is fatal for the prosecution. In para.6 of the said judgment this Court held that long and unexplained delay in conducting of the investigation and filing of the final report would lead to a situation where the accused would be entitled to the benefit of doubt. In the case that was considered by this Court which led to the aforesaid decision, the incident had occurred on 24.07.2007 and the investigation was started on 15.02.2008. In the case on hand, the alleged offence was committed on 27.10.2003 and the investigation was started admittedly only on 01.07.2005, almost two years thereafter. This Court has taken similar view in Chandran v. State [2016 (4) KLT 727], Mukundan v. State of Kerala [2016 (3) KLT 532] and the judgment in Crl.A.No.2213/2006. In the light of my finding regarding unexplained delay in the conduct of the investigation, the non-production of the property list to show the production of the property before the court and the incomplete forwarding note which does not clearly show as to when exactly the request was counter signed by the Magistrate, the appellant is entitled to succeed

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CRL.A.No.2076 OF 2006

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in this appeal.

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In the result, the judgment dated 22.09.2006 in S.C.No.340/2005 on the file of the Additional District and Sessions Court (Adhoc) No.II, Manjeri is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled.

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On 31.10.2006, this Court had directed the appellant to deposit a sum of Rs.10,000/- before the trial court. The appellant will be entitled to get refund of the said amount, for which he may approach the court below.

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The appeal is allowed as above.

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Sd/-

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T.R.RAVI, JUDGE

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dsn

Venugopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Venugopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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