High Court of KeralaSingle Judge2017-03-07Appeal allowed; conviction and sentence set asi...

A.V.Rajan v. State of Kerala

Case / Petition Number:CRL.A.No.2164 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. P. Jyothindranath
Judgment Date: 2017-03-07
Court Decision / Holding: The conviction and sentence imposed by the trial court is set aside. The appeal is allowed. Bail bonds stand cancelled.
Final Disposition: Appeal allowed; conviction and sentence set aside; bail bonds cancelled.

Parties to the Case

Appellants / Petitioners

A.V.Rajan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. P. Ramachandran

Counsels for Respondents

• Smt. K. K. Deepa

Case Synopsis & Summary

This criminal appeal challenges the conviction of the appellant under Section 58 of the Abkari Act for possession of six bottles of Indian Made Foreign Liquor (IMFL) at a bus stop on 22 August 2001. The bottles, each 375 ml, were seized by a Sub-Inspector, and a crime was registered (Crime No.144/01). The trial court convicted the appellant and sentenced him to six months’ rigorous imprisonment and a fine of Rs. 1,00,000, with default imprisonment. On appeal, counsel for the appellant argued that IMFL was lawful possession at the time, and the prohibition was not total; only up to 3 litres could be possessed if bought from licensed vendors, and the contraband allegedly lacked Kerala State Beverages Corporation stickers. They contended that the articles were not marked as material objects, that the forwarding note Ext.P4 lacked specimen seal, and that there was substantial delay in producing the contraband to the court, raising questions of tampering. The defense also pointed to hostile witnesses and cited Haridas v. State of Kerala and Krishnan H. v. State of Kerala to urge irregularities in investigation and procedure. The Public Prosecutor argued that the evidence supported production of the articles in court and that there was no prejudice to the appellant, but the judge found material irregularities, delay, and lack of proper labeling undermining the conviction. The High Court allowed the appeal and set aside the conviction and sentence.

Provisions of Law Cited

Section 58 of the Abkari ActSection 55(a) of the Abkari Act

Legal Doctrines & Maxims

Benefit of doubt

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that there was no total prohibition in the state during the relevant period and that possession of IMFL within the 3-litre limit, especially when purchased from licensed vendors, was permissible. The absence of the Kerala State Beverages Corporation sticker on the bottles does not conclusively prove illegality, and the evidence did not show the bottles were marked as material objects. The forwarding note Ext.P4 lacked a specimen seal, and the articles reportedly reached the court after a delay of six days, raising suspicion of tampering and challenging the integrity of the chain of custody. The investigation by an officer outside police station limits was improper, as cited in Haridas v. State of Kerala; independent witnesses were hostile; and Krishnan H. v. State of Kerala was cited in support of these procedural concerns.

Contentions of Respondents

The State contended that the prosecution produced the articles before the court as per the property list Ext.P4, and there was no illegality in the court's receipt of the articles. It argued that the evidence established the presence of the seized contraband and that there was no prejudice to the appellant despite the delay. The reliance on the opinions in Haridas and Krishnan H. was to be understood as part of the broader record of investigation; the court must consider whether delays and labeling gaps affect the conviction. Ultimately, the State maintained that proper application of law and facts supported conviction, and the appeal should be dismissed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Haridas v. State of Kerala	2015 (1) KLT 958	Mentioned Only	Cited by the appellant to challenge-investigation outside jurisdiction; the judgment itself does not adopt or distinguish this precedent as controlling of the current issues.
Krishnan H. v. State of Kerala	2015 (1) KHC 822	Mentioned Only	Cited to support the appellant's arguments, but the judgment does not adopt it as a binding rule on the present facts.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938** **CRL.A.No. 2164 of 2007 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 331/2003 of ADDL.DISTRICT COURT (ADHOC)III, THALASSERY DATED 15-10-2007** ## **APPELLANT/ACCUSED:** **------------------------------** **A.V.RAJAN, S/O. VELAYUDHAN** **AGED 53 YEARS, ELAMBILATH HOUSE, KANDAMKUNNU AMSOM, DESOM, KUTHUPARAMBA, THALASSERY.** **BY ADV. SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA (S.H.O. DHARMADAM POLICE STATION) THALASSERY, REPRESENTED BY, PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.K.K.DEEPA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - **Crl.Appeal No.2164 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of March, 2017 ## **JUDGMENT** This criminal appeal is filed against the conviction and sentence passed in S.C.No.331/2003 on the files of the Court of Sessions, Thalassery. The appellant is the accused. The facts necessary for disposal of this appeal is as follows : On 22.8.2001, the Sub Inspector of Dharmadam Police Station, while checking the vehicles on the national highway, found the accused standing at Koduvally bus stop holding a plastic bag in his hand. On suspicion, he was questioned and found that the bag contained six bottles of Indian Made Foreign Liquor each bottle contained 375 ml. Thereafter seeing that the said bottles lack the sticker of Kerala State Beverages Corporation, he was arrested and articles were seized and a crime was registered. An investigation was conducted and charge submitted before the court. PWs 1 to 5 were examined and Exts.P1 to P7 were marked. No material objects were marked. The court found 2 Crl.Appeal No.2164/2007 that the accused committed an offence under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for one month. 2. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted that there is no total prohibition in our State. At that point of time, Indian Made Foreign Liquor was permissible . But as per the Rules and notifications, only 3 litres of IMFL can be possessed by a person, provided it is purchased from a licenced vendor in the State. It is the further submission that, in this case, the positive case of the prosecution is that the bottles do not have the seal or sticker of the Kerala State Beverages Corporation. But the said bottles allegedly seized are not seen marked in the proceedings. It is also submitted that even though the said articles are seized on 22.08.2001, the same reached the court only after six days. It is further submitted that, in this case, it appears that an investigation was 3 Crl.Appeal No.2164/2007 conducted by an officer outside the limits of the police station which is not proper as held by this Court in **Haridas v. State of Kerala ( 2015 (1) KLT 958).** It is further submitted that independent witnesses in this case declared hostile and that Ext.P6 which is the copy of the forwarding note provided by the investigating officer to the court, on which the article was forwarded, lacks the specimen seal. This aspect attains importance especially when the contraband reached before the court belatedly as well as the material objects are not marked in the proceedings. Under such circumstances, it is submitted that the appellant is entitled for benefit of doubt. To support this argument, the learned counsel also relied on the decision of this Court in **Krishnan** **H. v. State of Kerala (2015 (1) KHC 822)** . 3. I heard the learned Public Prosecutor. The learned Public Prosecutor submitted before me that the appellant got no case that the article was not produced before the court. The only case is that there was delay in producing the same. When the articles are produced 4 Crl.Appeal No.2164/2007 before the court, even if it is not marked as material object, it can be seen that the court received the articles as per the property list marked as Ext.P4. Even though material objects are not marked, it can be seen that no illegality is committed by the court in coming to a conclusion that the actual articles seized by the Police reached at the court. It is also the submission made before me that, in this case, the investigation by a Police Officer outside the limits of the police station only benefited the accused and ensured an impartial investigation. In this case no prejudice caused to the appellant, but only it was for the benefit of the appellant, that also to ensure impartial investigation. It is the submission that on the basis of all these aspects, there is no illegality committed by the court and the appeal has to be dismissed. 4. After hearing both sides, I have perused the records in this case. It can be seen that as per Ext.P3, crime was registered by the Police on 22.08.2001 for an offence under Section 55 (a) of the Abkari Act as Crime No.144/01 of Dharmadam Police Station. The allegation Crl.Appeal No.2164/2007 5 was that on 22.8.2001 at about 19.00 hours, appellant was seen in possession of six bottles of IMFL each containing 375 ml. The said articles are seized as per seizure mahazar Ext.P2. It was forwarded to the court as per Ext.P4 and the said document reached at the court only on 29.8.2001 as per the endorsement of the Magistrate. In this case, the witnesses examined before the Court are PW1 who is the Sub Inspector. He deposed regarding the seizure. PW2 turned hostile. PW3 also turned hostile. PW4 is the person who filed the charge. PW5 is the investigating officer. He was the Additional Sub Inspector of Tellichery Police station, i.e. the neighbouring police station. The quantity involved in this case is only a bit higher than 2 litres, but below 3 litres of IMFL. 5. The main point highlighted is that the bottles lack the sticker of Kerala State Beverages Corporation. But it is pertinent to note that the said material objects are not produced before the court. Surely, the property list is marked as Ext.P4 before the court. But that Crl.Appeal No.2164/2007 6 alone will not be sufficient when the main aspect on which the prosecution relies is that the bottles lack the sticker of the Kerala State Beverages Corporation. More over, in this case it can be seen that the appellant also got a case that Ext.P6 lacks the specimen sample seal. 6. I have perused the same. It is seen that the impression of the specimen seal is lacking . It is also the case of the defence that the articles reached the court only after six days of the seizure. I have perused Ext.P4 which also shows that it reached the Magistrate Court only on 29.08.2001. In the light of delay, tampering cannot be ruled out. 7. Thus, considering all aspects including the fact that there was no total prohibition during the relevant period and further that the contraband is below 3 litres and also considering all other aspects like delay in reaching before the court and also the fact that there was no specimen impression seal seen on the forwarding note, I feel that the conviction entered into by the court below is not proper. Hence the 7 Crl.Appeal No.2164/2007 conviction and sentence imposed by the trial court is hereby set aside. The bail bonds stand cancelled. The appeal is allowed. **K.P.JYOTHINDRANATH JUDGE** sv.