Crl.A. No. 2077/2004 and Crl.A. No. 2105/2004 (Sabu S/o Sugathan & Sathyan S/o Kesavan Thampi v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **CRL.A.No.2077 OF 2004** **AGAINST THE ORDER/JUDGMENT IN SC 439/1999 DATED 06-12-2004 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I), TRIVANDRUM** ## **APPELLANTS/ACCUSED:** - **1 SABU, S/O, SUGATHAN, T.C.16/97, KRISHNAVILASAM ROAD, JAGATHY WARD, THYCAUD VILLAGE.** - ~~**2**~~ **(SUNILKUMAR, S/O.BHASKARAN *(DELETED) VAYALINIKATHIYA PUTHEN VEEDU,, T.C.16/97, KRISHNA VILASAM ROAD,, JAGATHY WARD, THYCAUD VILLAGE.)** - ~~**3**~~ **2 MURUKAN, S/O.KESAVAN THAMPI KEEZHEMUDUMBIL VEEDU, T.C.20/44,, MELARANNOOR, KARAMANA WARD, THYCAUD VILLAGE.** - **THE 2ND APPELLANT IS DELETED FROM THE PARTY ARRAY AND THE 3RD APPELLANT IS GIVEN THE RANK OF THE 2ND APPELLANT VIDE ORDER DATED 11.01.2018 IN CRL.MA. 6736/17 IN CRL.A. 2077/2004. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.HARIDAS P.NAIR SRI.KRISHNADAS P. NAIR SRI.PRABHU VIJAYAKUMAR SMT.K.L.SREEKALA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.B.JAYASURYA- SR.P.P** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH CRL.A.2105/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeals 2077 & 2105/2004 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **CRL.A.No.2105 OF 2004** **AGAINST THE ORDER/JUDGMENT IN SC 439/1999 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I), TRIVANDRUM DATED 6.12.2004** ## **APPELLANT/ACCUSED NO.4:** **SATHYAN S/O. KESAVAN THAMPI, KEEZHEMUDUMBIL VEEDU, T.C.20/44, KARAMANA WARD,, THYCAUD VILLAGE.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.HARIDAS P.NAIR SRI.KRISHNADAS P. NAIR SRI.PRABHU VIJAYAKUMAR SMT.K.L.SREEKALA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.B.JAYASURYA- SR.P.P** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH CRL.A.2077/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeals 2077 & 2105/2004 -3- ## **JUDGMENT** **[ CRL.A.2077/2004, CRL.A.2105/2004 ] Dated this the 7th day of November 2019** Crl.A.No.2077/2004 is filed by accused Nos.1 & 3 in SC No.439/1999 on the file of the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram, while Crl.A.No.2105/2004 is filed by accused No.4 in that case, who were all found guilty for an offence punishable under Section 55(a) of the Abkari Act, convicted thereunder and sentenced to undergo rigorous imprisonment for a period of 5 years each and to pay a fine of Rs.1,00,000/- each with a default sentence of one year's rigorous imprisonment each. 2. The prosecution case in brief is thus:On 13.2.1998 at about 1.45 a.m. PW4 the Sub Inspector of Police, accompanied by PW3 the Police Constable attached to Thampanoor Police Station saw the accused carrying cans containing 35 litres of spirit each from the property of one Chandran Muthalali, Killippalam Crl.Appeals 2077 & 2105/2004 -4- towards a Maruthi car parked in the property. Inside the Maruthi car, there were two cans of spirit. 19 similar cans containing spirit were also found in the property. Altogether 625 litres of spirit was seized by PW4. Ext.P1 mahazar was prepared in the presence of two independent witnesses examined as PWs 1 & 2 who turned hostile during trial. The accused were arrested as per Ext.P3 arrest memo. On reaching Thampanoor Police Station, Ext.P2 FIR was registered. Since the scene of occurrence was came within the jurisdiction of Fort Police Station, the FIR was transferred and subsequently PW5, the Head Constable attached to the Fort Police Station registered a fresh FIR as per Ext.P4. The case was investigated by PW6, the SI of Police, Fort Police Station and charge laid. It is seen that the contraband articles were produced before the jurisdictional Magistrate only on 16.2.1998. The property list as also the forwarding note are not let in evidence. DW1 the property clerk was examined and he produced the property register which would show that the items were produced before the court only on 16.2.1998. 3. The important lacuna in the prosecution case Crl.Appeals 2077 & 2105/2004 -5- pointed out by the learned counsel appearing for the accused is, first that PW4 did not have jurisdiction to detect an abkari offence as an abkari officer under the Akbari Act from a place not coming within his jurisdiction. The detection of an abkari offence outside the jurisdiction is not proper as is held in a number of cases as in Mahesh M.K. v. State of Kerala [2017 (1) KHC 120] , Mari Dhorai & Another v. State of Kerala [2018 KHC 814] and Ravi v. State, SI of Police, Meppadi [2018 (5) KHC 352] . PW4 was definitely not an officer authorised under the Abkari Act to detect an abkari offence coming within the jurisdiction of Fort Police Station and therefore, the prosecution case is defective for that reason alone. 4. That apart, it is seen that on transfer of the FIR, it is PW5, Head Constable attached to Fort Police Station, who had registered the FIR at Fort Police Station. He too is not a competent abkari officer authorised to register a case under the Abkari Act. It is also pertinent to note that PW6, who is also a SI of Police of the Fort Police Station, had investigated the case. The investigation has to be conducted by an officer superior in rank to the person who detected the Crl.Appeals 2077 & 2105/2004 **==> picture [19 x 8] intentionally omitted <==** offence and therefore, the prosecution case suffers infirmity for that reason also. 5. That apart, the most important thing is that there is a delay of four days in producing the contraband and no acceptable explanation is forthcoming from the prosecution witnesses regarding the reasons for the delay. Delay in producing the property in an Abkari case is fatal as is held by this Court in Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308] as also in Mahesh M.K. [supra] and also in Ravi [supra]. No property list is seen produced or tendered in evidence. It is only from the property register that DW1 testifies that it was produced on 16.2.1998 and therefore, the delay is fatal. 6. Further, it is also seen that the forwarding note which should contain the specimen of the seal that is affixed on the samples collected from the contraband seized from the accused is not seen produced and tendered in evidence. Absence of forwarding note in abkari case is fatal to the prosecution as is held in Vijayan @ Pattalam Vijayan v. State of Kerala [2018 (2) KHC 814] . The verification of the seal on the forwarding note is essential because it has to be Crl.Appeals 2077 & 2105/2004 -7- proved by the prosecution that the very same sample that was collected from the contraband seized from the accused reached the Chemical Examiner for being examined. Under the circumstances, the prosecution case is flawed for that reason too. 7. All these infirmities in the prosecution case contributes to the failure of the prosecution case in bringing home the guilt of the accused. I find that the conviction is not sustainable and has to be set aside. In the result, the criminal appeals are allowed and the conviction and the sentence ordered vide the impugned judgment are set aside and the appellants/accused are acquitted. They are set at liberty, in case they are not required in connection with any other case. The bail bond if any executed by the accused shall stand cancelled. Fine amount, if any paid, shall be refunded. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg Crl.Appeals 2077 & 2105/2004 -8-