Allowed

Raju v. State of Kerala

Kerala HC9 Mar 2021CRL.A/391/2006

Case brief

AI extract

What is this about?

In a criminal appeal regarding arrack distillation, the High Court acquitted the accused due to fatal infirmities in the prosecution case including failure to prove possession, missing arrest memo, destruction of seized wash without sampling, and unexplained delays in custody documentation.

What did the court decide?

The impugned judgment of conviction and sentencing was set aside; the appellant was acquitted and set at liberty; bail bonds were cancelled.

Raju Vs State of Kerala — Kerala HC (2021) — LawSathi Research

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Crl.A.391 of 2006

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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CRL.A.No.391 OF 2006

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AGAINST THE JUDGMENT IN SC 925/2003 DATED 25-01-2006 OF ADDITIONAL SESSIONS COURT, FAST TRACK-I, ALAPPUZHA

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APPELLANT/ACCUSED:

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RAJU

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S/O.KUNJUPANICKEN,VATHIYUDETHARAYIL, ELIPPAKKULAM MURI,, VALLIKUNNAM VILLAGE.

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BY ADVS.

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SRI.R.GOPAN SRI.BASANT BALAJI

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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 PUBLIC PROSECUTOR SMT.SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.391 OF 2006

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JUDGMENT

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Dated this the 9^th day of March 2021

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The accused in S.C.No.925/2003 on the file of the Additional Sessions Court, Fast Track I, Alappuzha has filed this appeal being aggrieved by the judgment dated 25.01.2006, whereby he has been found guilty of offence under Sections 55(a) and (g) of the Abkari Act and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of 1,00,000/- and in default of payment₹ of fine to undergo simple imprisonment for a period of 6 months.

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The case of the prosecution is that on 09.07.2001 at

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about 10 a.m., the Sub Inspector of Vallikunnam Police Station got information that the accused was distilling arrack in his residential house, that the police party proceeded to the house and reached there at 10.20 a.m., that the accused attempted to run away but was detained, that on searching the house, it was found that arrack was being distilled in the hall of the house, that 15 litres of wash and 3 litres of arrack were found, that sample of arrack was taken at the spot and wash was destroyed and that the necessary papers were drawn up. Crime was registered under Sections 8(1) and (2) and 55(a) and (g) of the Abkari Act. Before the court

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CRL.A.No.391 OF 2006

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below, PW1 to PW5 were examined and Exts.P1 to P7 were marked. MO1 to MO5 were produced and identified. On the basis of the evidence on record, the court below found the accused guilty of offences under Sections 55(a) and (g) of the Abkari Act and imposed on him the sentence referred above.

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Heard Sri R.Gopan on behalf of the appellant and Smt.Sylaja, Public Prosecutor on behalf of the State.

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The counsel for the appellant points out several infirmities in the prosecution case. Firstly, it is contended that there is no evidence produced to show that the contraband articles were recovered from his possession or person and that it is admitted by PW1 that no effort has been taken to find out the ownership of the building from which the contraband articles were seized. Secondly, it is pointed out that the arrest memo has not been produced and marked in the evidence and that the witness has also not spoken to the fact of preparation of arrest memo at the scene of occurrence in the presence of the witnesses. Thirdly, it is pointed out that even though the case is charged under Sections 55(a) and (g) of the Abkari Act, admittedly, the Wash said to have been found in the hall in the building was destroyed

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CRL.A.No.391 OF 2006

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in the spot itself and no sample was drawn from the wash. It is hence submitted that the entire seizure itself is doubtful. Fourthly, it is submitted that even though the offence is said to have been detected on 9.7.2001 in the morning hours, the contraband articles were produced before court only on 10.7.2001 and no explanation is offered in the evidence. It is also pointed out that though the Forwarding note is said to have been produced before Court on 10.7.2001, the sample has reached the Examiner only on 23.8.2001, which delay is also not explained in any manner. On a perusal of the evidence on record, I find that there are several infirmities in the prosecution case as pointed out by the counsel.

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On the first contention raised by the counsel, this Court has in several decisions held that to constitute possession, it should be proved that the accused had dominion or control over the article and that merely because an article was found stored in a building, that does not make the owner or occupier of a person in possession of the contraband article. There cannot be a presumption in such matters. It is admitted by the prosecution witness that no independent effort was taken to find out whether the accused was the occupier or owner of the building in question.

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CRL.A.No.391 OF 2006

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(See Ravi.C v.State of Kerala 2011(3)KHC 427 and Suresh v. State of Kerala 2020(3)KHC 788). Regarding failure to produce, prove and mark the arrest memo, this Court has held that it would create suspicion regarding the arrest of the accused at the time and place alleged by the prosecution and that when the arrest of the accused on the spot is not proved the prosecution case will fall to the ground. (See Ramankutty v. Excise Inspector 2013(3) KHC 308). Regarding the third contention, the prosecution having allegedly seized wash while in the process of distillation, ought to have taken sample of the same and sent for chemical analysis. Instead, admittedly, the entire wash is said to have been destroyed. Even though the procedure under Section 53A will not apply as the offence is said to have been committed prior to the amendment of the Act, the basic requirement to lead evidence in support of the specific case put forward by the prosecution ought to have been done.

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Regarding the fourth contention this Court has held that in the absence of explanation by the Investigating Officer, even one day's delay in production of contraband is fatal for the prosecution. [See Ravi v. State of Kerala (2018 (5) KHC 352),

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CRL.A.No.391 OF 2006

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Ramankutty v. Excise Inspector (2013 (3) KHC 308) & Balachandran V. State of Kerala (2020 (3) KHC 697)]. Regarding the fifth contention, on a perusal of Ext.P6 Forwarding note, it is seen from the seal of the court, that the same is produced before the Court on 10.7.2001. There is no clear initial of the Magistrate seen on the document nor is any date written by the Magistrate, which would indicate the date of despatch of the sample to the examiner. The name of the officer with whom the sample is to be sent is also not mentioned. A carbon copy of a letter from the Magistrate to the Chemical Examiner is attached to the forwarding note in which a date 22.8.2001 is seen written in ink. So also the number of the Police Constable and his name is also seen inserted in ink. The document purports to forward the samples in three different cases pending before the Court. H owever, the said document does not clearly establish the custody of the sample between 10.7.2001 and 22.8.2001. The above infirmities are fatal for the prosecution case. [See Jayakumar v. State of Kerala (2018 KHC 3165), and Kumaran v. State of Kerala (2016 (4) KLT 718)] .

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In the above circumstances, the appellant is entitled to succeed. The judgment dated 25.01.2006 in S.C.No.925/2003 on

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CRL.A.No.391 OF 2006

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the file of the Additional Sessions Court, Fast Track I, Alappuzha 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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dsn

Raju v. State of Kerala

Case brief

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Raju v. State of Kerala

Case brief

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