Criminal Appeal Nos. 794 & 823 of 2007: Biju v. State of Kerala and Ajithkumar @ Saju v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 CRL.A NO. 794 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 226/2004 OF ADDITIONAL DISTRICT COURT, FAST TRACK-III, TRIVANDRUM CP 82/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, TRIVANDRUM ``` ## **`APPELLANT/ACCUSED (ORIGINAL 3RD ACCUSED IN CRIME):`** ``` BIJU, S/O.SURENDRAN, SUSEELA BHAVAN, NEAR CHELLAMANGALAM DEVI TEMPLE, POTTAYIL OFFICE, VILAVOORKAL VILLAGE. BY ADV SRI.D.KISHORE ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** - `1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.` - `2 THE SUB INSPECTOR OF POLICE FORT POLICE STATION, THIRUVANANTHAPURAM. ADV.SANAL P.RAJ, PP` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, ALONG WITH CRL.A.823/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA Nos.794 & 823 of 2007** **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 ``` ``` CRL.A NO. 823 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 226/2004 OF ADDITIONAL DISTRICT COURT, FAST TRACK-III, TRIVANDRUM ``` ## **`APPELLANT/2ND ACCUSED:`** ``` AJITHKUMAR @ SAJU S/O.SIVANANDAN, ATTUVARAMBIL VEEDU, T.C.50/2, KALADI WARD, MANACAUD VILLAGE,, THIRUVANANTHAPURAM. BY ADV SRI.G.SUDHEER ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ADV.SANAL P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, ALONG WITH CRL.A.794/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA Nos.794 & 823 of 2007** **3** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal Nos.794 & 823 of 2007 ---------------------------------------------Dated this the 12[th ] day of August, 2022** ## **JUDGMENT** These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. 2. These two appeals are filed by the accused in S.C.No.226/2004 on the file of the Additional Sessions Court, Fast Track III, Thiruvananthapuram. The above case is chargesheeted against three accused alleging offences punishable under Sections 55(a), 58, 8(1) and (2) of the Abkari Act. Pending trial, the first accused died. Therefore his case was abated. 3. The prosecution case is that on 28.10.2000 at 5.15 pm, accused Nos.1 and 2 transited five bottles of 1½ litres of arrack in an autorikshaw driven by the 3[rd] accused. PW2, the Sub Inspector of Police, Fort Police Station, detected the offence. It is also alleged that the 3[rd] accused is not having any valid licence to drive the vehicle. Hence it is alleged that **CRA Nos.794 & 823 of 2007** **4** the accused committed the offence. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P9 are the exhibits. DW1 is the witnesses examined on the side of the defence. MO1 to MO3 are the material objects. After going through the evidence and the documents, the trial court found that the accused Nos.2 and 3 committed the offence under Section 55(a) of the Abkari Act. As far as the 3[rd] accused is concerned, the trial court found that he committed the offence under Section 3(1) and 181 of the Motor Vehicles Act. Aggrieved by the conviction and sentence, the 2[nd] accused filed Criminal Appeal No.823/2007 and the 3[rd] accused filed Criminal Appeal No.794/2007. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that there is a delay of two days in producing the contraband article before the Court and there is no explanation for the same. The learned counsel also submitted that samples were taken by the thondi clerk attached to the Court and in the light of the judgment of this Court, the same is illegal. **CRA Nos.794 & 823 of 2007** **5** 7. The Public Prosecutor on the other hand submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the appellants. 8. This Court considered the contentions of the appellants and the Public Prosecutor. Admittedly there is a delay of two days in producing the contraband article before the Court. There is no proper explanation for the same. The delay in producing the article is fatal to the prosecution. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT 920)** , **Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822)** . Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled **CRA Nos.794 & 823 of 2007** **6** to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 9. Moreover, the samples were taken by the Thondi Clerk attached to the Court. It is a settled position that the Court has no business to take sample from the contraband. This point is considered by this Court in **Smithesh v. State of** **Kerala [2019 (2) KLT 974]** . Relevant paragraph of the judgment is extracted hereunder: “7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what **CRA Nos.794 & 823 of 2007** **7** authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans.” In the light of the above discussion, I think the appellants are entitled the benefit of doubt as far as the possession of the contraband is concerned. But, as far as the 3[rd] accused is concerned, there is a charge under Section 181 of the Motor Vehicles Act and he is sentenced to pay a fine of Rs.500/-. The 3[rd] accused has not produced any document to show that he was having a licence at the time of occurrence. If that is the case, the conviction and sentence imposed on the 3[rd] accused as far as the offence under Section 181 of the Motor Vehicles Act is to be confirmed. **CRA Nos.794 & 823 of 2007** **8** Therefore, these criminal appeals are disposed of in the following manner: - i. Criminal Appeal No.823/2007 is allowed. The conviction and sentence imposed on the appellant is set aside and the appellant is set at liberty. - ii. The bail bond, if any, executed by the appellant is cancelled. - iii. Criminal Appeal No.794/2007 is allowed in part. The conviction and sentence imposed on the appellant under Section 55(a) of the Abkari Act is confirmed. The conviction and sentence imposed on the appellant under Section 181 of the Motor Vehicles Act is confirmed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV