CRL.A.No. 931 of 2007

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940 CRL.A.No. 931 of 2007** **SC 174/2001 of ADDL. SESSIONS JUDGE, SPECIAL COURT FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA DATED 14-04-2007** **APPELLANT(S)/ACCUSED** **STEPHAN, S/O.CHELLAPPAN NADAR, SAUMYA BHAVAN, POOCHAPPARA, KOKKUDIMURI,, MANOORKARA VILLAGE, THIRUVANANTHAPURAM (DIST).** **BY AMICUS CURIAE SMT. NITHYA VIJAYAN** **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY ITS THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY ADV. GOVERNMENT PLEADER SRI. E.C. BINEESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## B. SUDHEENDRA KUMAR, J. -------------------------Crl.Appeal No. 931 of 2007 ------------------------ Dated this the 31[st] day of May, 2018 ## JUDGMENT The appellant is the accused in S.C. No. 174 of 2001 on the files of the court below. 2. The prosecution allegation is that on 19-091998 at about 4.30 p,m., the appellant was found in possession of 5 litres of illicit arrack and a glass for the purpose of sale, in contravention of the provisions of the Abkari Act. 3. The offence was detected by PW4 and party. -2- Crl.Appeal No. 931 of 2007 The investigation was conducted by PW4. After completing the investigation, PW4 filed the final report before the Court. 3. In the trial, PW1 to PW5 were examined and Exts. P1 to P8 were marked for the prosecution, besides identifying MO1 and MO2. DW1 was examined for the appellant. 4. After evaluating the evidence, the court below found the appellant guilty under Section 58 of the Abkari Act , convicted him thereunder and sentenced him to rigorous imprisonment for two years and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for three months -3- Crl.Appeal No. 931 of 2007 5. Since there is no representation for the appellant, this Court appointed Adv. Smt, Nithya Vijayan as the amicus curiae to assist this Court. 6. Heard the learned Amicus Curiae and the learned Public Prosecutor. 7. The learned Amicus Curiae has submitted that eventhough the incident in this case was on 19-9-1998, the contraband article and the sample were produced before the court only on 5-10-1998 and in the said circumstances, the conviction and sentence cannot be sustained. -4- Crl.Appeal No. 931 of 2007 8. In this case, PW4 was the Sub Inspector of Police who detected the offence. According to him, on 19-09-1998, he saw the appellant proceeding with a 10 litre can. On suspicion, the appellant was intercepted and the content inside the can was tested by smelling and tasting the same. Then, PW4 and others were convinced that the content inside the can was illicit arrack. He arrested the appellant and seized the contraband as per Ext. P1 mahazar. He also sealed the same in accordance with law. PW3 was a police constable who accompanied PW4, who also supported the evidence of PW4 in all material aspects. -5- Crl.Appeal No. 931 of 2007 9. Ext. P4 is the thondi list whereby the contraband article was produced before the court. Ext. P4 would show that the contraband and the sample were produced before the court only on 5-10-1998. PW4 also stated that he produced the contraband before the court only on 5-10-1998. However, no reason was stated by PW4 for the delayed production of the contraband article before the court. The delay as such is not always material. However, the unexplained delay in producing the sample and the contraband before the court is fatal to the prosecution. 10. In this case, the prosecution did not explain the delay from 19-9-1998 to 5-10-1998 in producing -6- Crl.Appeal No. 931 of 2007 the contraband and the sample before the court. In the said circumstances, there cannot be any guarantee that the sample produced before the court and analysed in the Laboratory was the sample drawn from the contraband seized from the appellant. It is also to be noted that Ext. P8 forwarding note does not contain the specimen of the seal at the space provided for the same. 11. This Court in Krishnan H v. State of Kerala [2015 (1) KHC 822] held that the absence of sample seal in the space provided in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided in the original forwarding note. Ext. P6 does not contain the specimen of the seal. No evidence -7- Crl.Appeal No. 931 of 2007 was adduced to prove that the sample seal was provided in the original forwarding note. In view of the above reasons, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 58 of the Abkari Act and the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged. ## Sd/-B. SUDHEENDRA KUMAR, JUDGE . ani/4/6/2018 /true copy/