Allowed

Augustine v. State of Kerala

Kerala HC9 Mar 2021CRL.A/41/2008

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the conviction and sentence under Section 55(g) of the Abkari Act. The court held that the prosecution failed to follow the mandatory procedure under Section 53A, as the seized wash was destroyed at the scene and the forwarding note was defective, leading to the appellant's acquittal.

What did the court decide?

Conviction and sentence set aside; appellant acquitted and set at liberty; bail bond cancelled;

Augustine Vs State of Kerala — Narcotics (NDPS) | 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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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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CRL.A.No.41 OF 2008

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AGAINST THE ORDER/JUDGMENT IN SC 459/2006 DATED 07-122007 OF III ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC1), THODUPUZHA

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APPELLANT/ACCUSED:

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AUGUSTINE S/O MATHAI,CHENNAKUZHIYIL HOUSE, THOYIPRAKARA,, PURAPPUZHA VILLAGE, THODUPUZHA.

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BY ADV. SRI.JOMY GEORGE

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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R1 SMT. SYLAJA, PUBLIC PROSECUTOR

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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.41 OF 2008 2

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JUDGMENT

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Dated this the 9th day of March 2021

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The accused in S.C.No.459/2006 on the file of the Third Additional Sessions Court (Adhoc-I), Thodupuzha, has filed this appeal being aggrieved by the judgment dated 07.12.2007 whereby he has been found guilty of offence punishable under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for a further period of three months.

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The case of the prosecution is that, on 17.05.2005 at 6.30 pm, the accused was found in possession of 25 litres of wash in a 25 litres capacity can, stored for manufacture of arrack in his house at Thoyipra Kara, Purappuzha village. Before the trial court, the prosecution examined PWs 1 to 6 and Exts. P1 to P13 were marked. On the basis of evidence on record, the court below found the appellant guilty of the offence and imposed on him the sentence referred above.

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Heard Sri.Jomy George on behalf of the appellant

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and Smt.Sylaja, Public Prosecutor on behalf of the State.

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CRL.A.No.41 OF 2008 3

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The counsel for the appellant contends that the entire case of the prosecution is vitiated for not complying with the procedure laid down in Section 53A of the Abkari Act. On going through the records and evidence of the witness, I find that there is considerable force in the contention raised by the counsel for the appellant. Admittedly, the wash, which is said to have been seized, was not produced before the court and only an empty can with a white tag has been identified as material object in this case. Ext.P1, which is the Mahazar prepared by PW1 on 17.05.2005 at the time of detection specifically states that after taking about 500 ml of wash as sample, the balance quantity of wash was destroyed at the site of occurrence itself in the presence of witnesses and the accused.

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Ext.P11 which is the property list produced before the court shows that what is produced is a can which was empty and a bottle which contained 500 ml of wash allegedly collected as sample. Ext.P12, which is the forwarding note which has been marked in this case is not seen prepared in the manner required as per law. The name of the Excise Guard who collected the sample to be sent for analysis is not stated in the forwarding note and the column for the purpose is left blank.

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CRL.A.No.41 OF 2008 4

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Even though, the Excise Inspector seems to have signed in Ext.P12 on 17.05.2005, the document reached before the Judicial First Class Magistrate only on 21.05.2005. Though the forwarding note has been counter signed by the Magistrate, no date is seen along with the initials to show when exactly it is counter signed. The date of actual despatch is not clear from the document. However, it would appear from Ext.P13, which is the certificate issued by the Chemical Examiner that the sample reached the Examiner on 23.05.2005.

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The counsel for the appellant relied on a decision of this Court in Balan vs. State of Kerala (Crl.A.No.1750/2007) wherein this Court has considered a case with similar set of facts and found that the prosecution failed to follow the procedure prescribed in Section 53A of the Abkari Act and held that the accused is entitled to be aquitted. From a reading of the said judgment, it is seen that it was also a case wherein the entire wash other than the sample taken was destroyed at the scene of occurrence and only the empty can was actually seized by the Investigating Officer. In the above said judgment, this Court relied on the decision in Appu vs. State of Kerala [2016 (4) KLT SN 71] and Ravi vs. State of Kerala and

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CRL.A.No.41 OF 2008 5

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another [2011 (3) KLT 353 ] and held that the failure to follow the procedure prescribed under Section 53A is fatal for the prosecution. I am in respectful agreement with the reasoning adopted by this Court in the judgment in Crl.A.No.1750/2007.

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In the above circumstances, the judgment dated 07.12.2007 in S.C.No.459/2006 on the file of the Third Additional Sessions Judge (Adhoc-1), Thodupuzha 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. At the time of admission of this appeal, this Court had directed the appellant to deposit Rs.25,000/- before the court below for the purpose of granting bail. Amounts, if any, deposited will be refunded to the appellant.

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This appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

LEK

Augustine v. State of Kerala

Case brief

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Augustine v. State of Kerala

Case brief

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