Divakaran s/o Ayyappan and Valsamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **CRL.A.No.2190 OF 2006** **AGAINST THE JUDGMENT IN SC 69/2004 DATED 20-10-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP 45/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAPPANA** ## **APPELLANTS/ACCUSED:** ***1 DIVAKARAN S/O AYYAPPAN, MADATHANIKUNNEL HOUSE, KALKOONTHAL VILLAGE, THULASIPARA KARA. [DEAD]** **2 VALSAMMA W/O. DIVAKARAN MADATHANIKUNNEL HOUSE, KALKOONTHAL VILLAGE, THULASIPARA KARA.** **BY ADVS. SRI.K.M.KURIAN SRI.P.VIJAYAKUMAR** ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY THE ADDL. S.I. OF POLICE, KATTAPPANA,, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI.B.JAYASURYA, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.2190 OF 2006 2 ## **J U D G M E N T** **Dated this the 4th day of June, 2020** **…** **The appellants are the accused in S.C. No.69 of 2004 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha. The above case is charge sheeted by the Sub Inspector of Police, Kattappana alleging offences punishable under Sections 55(b) and** **(g) and 8(1) & (2) of the Abkari Act (hereinafter ‘the Act’).** **2. When this appeal came up for consideration on 18.09.2019, the counsel for the appellant submitted that, the first appellant is no more. On that date, the case was posted after two weeks for verification of the same by the Public Prosecutor. Thereafter, the matter came up on 05.03.2020. It was again reported that, the first appellant died. This Court granted two weeks’ time for giving an** CRL.APPEAL NO.2190 OF 2006 3 **opportunity to the legal heirs of the deceased first appellant to come on record. The order dated 05.03.2020 is extracted hereunder:** _**“Since the first appellant is reported to be no more, the legal heirs are given an opportunity to come on record for prosecution of the appeal. Post after two weeks.”**_ **Today when the appeal again came up for consideration, legal heirs of the first respondent are not on record. Since this appeal is of the year, 2006, the learned counsel for the appellant submitted that, the appeal can be heard today itself. The death certificate of the first appellant will form part of this judgment. The registry will carryout necessary correction in the appeal memorandum.** **3. The prosecution case is that on 03.04.2001 at 10.45 p.m., prosecution witness No.5, who is the Sub Inspector of Police, Kattappana, got information that, distillation of arrack was being done in the house of the first accused. After preparing search memorandum, PW5 proceeded to the house of the first** CRL.APPEAL NO.2190 OF 2006 4 **accused near Thulasippara. He saw light from the south western room of the house. When he reached there, the first accused ran away from that room. The second accused was found distilling arrack in the bathroom of the house. After calling neighbours, the room was searched. Arrack was found in a 750 ml. bottle. One litre of arrack was found in a 5 litre can. Distilled arrack was being collected in a one litre bottle. Sample of wash from the aluminum pot found on the kerosene stove and sample of arrack were taken. Accused No.2 was arrested. The arrack and utensils for the distillation of arrack were taken into custody under Ext.P1 mahazar.** **4. To substantiate the case, the prosecution examined PWs.1 to 5. Exhibits P1 to P9(a) are the exhibits on the side of the prosecution. Exhibit D1 is the exhibit marked on the side of the defence. One witness was examined on the side of the defence as DW1. On going through the evidences and documents, the lower court found that, the accused committed offence under Section 55(b)and(g) of the Abkari Act** CRL.APPEAL NO.2190 OF 2006 5 **and they are convicted thereunder. Aggrieved by the conviction and sentence, this appeal is filed.** **5. Heard the learned counsel for the appellant and the learned Public Prosecutor.** **6. The learned counsel for the appellant submitted that, even if the entire prosecution case is accepted, no offence under Section 55(b)and(g) of the Abkari Act is made out in this case. He also contended that, the contraband articles in this case were produced before the court only on 06.04.2001 whereas the seizure of the articles was on 03.04.2001. There was no explanation from the prosecution regarding the same. On these reasons, the counsel contended that, the appellants are entitled to the benefit of doubt.** **7. The Public Prosecutor supported the judgment of the trial court. The Public Prosecutor submitted that, the oral and documentary evidences proved the commission of offence by the accused under Section 55(b) and (g) of the Act.** **8. After hearing both sides, the point to be** CRL.APPEAL NO.2190 OF 2006 6 **decided is, whether the prosecution was able to prove the offence under Section 55 (b) and (g) of the Abkari Act against the accused. The other point to be decided is, whether the trial court considered the entire evidences and appreciated the evidences in accordance to law, for convicting the accused.** **9. After hearing both sides, I find some force in the arguments of the learned counsel for the appellant. Admittedly, the seizure of the article in this case was on 03.04.2001 at 11.30 p.m. The contraband article seized were produced before the court on 06.04.2001 as per the property list. There is no explanation from the side of the prosecution regarding the delay in producing the article before the court. According to the learned Sessions Judge, there is, practically, no delay in producing the material. This Court in** _**Ravi v. State of Kerala [2011 (3) KLT 353]**_ **clearly stated that, the property should be produced before the Court forthwith and if there is any delay, the prosecution should explain the same. In** _**Vikraman v. State of Kerala [2018 (1)**_ CRL.APPEAL NO.2190 OF 2006 7 _**– KLT 822], Ravi v. State S.I. of Police, Meppadi [2018(5) KHC 352] and Sukumaran v. State of Kerala [2019 (3) KLT 920],**_ **this Court observed that, if there is any delay in producing the article before the court in Abkari cases, it is fatal to the prosecution especially in cases there is no explanation. The Sessions Court cannot conclude that, two days' delay is not material and there is practically no delay. In such circumstances, I think, on this ground itself, the accused is entitled the benefit of doubt. Moreover, the contraband article seized as per Ext.P1 seizure mahazar was from the house bearing No.VII/417. DW1 deposed that, it is the house of one Mony Sreedharan. According to the prosecution, the correct number is VII/415. But, DW1 says that, that house belongs to one Mathan Thomas. It is true that, the prosecution examined PW3, the then Secretary, Erattayar Panchayat. DW1 is also the Panchayat Secretary. According to the prosecution, there is some confusion regarding the number. But, when the seizure mahazar shows a particular number** CRL.APPEAL NO.2190 OF 2006 8 **and if that is not the correct number, then it is up to the prosecution to clear off the doubt. On a reading of evidence of PW4 and DW1, I think, there is confusion regarding the building from which the contraband article was seized. Therefore, I think, on this ground also the appellants are entitled the benefit of doubt.** **10. In the light of the above facts narrated, I think, the 2[nd] appellant is entitled the benefit of doubt. Even though, the legal heirs of the first appellant are not parties to the proceedings, in the light of the finding that, there is fundamental defects in the prosecution case, it will be proper to set aside the conviction and sentence of fine imposed against the deceased 1[st] accused. Simply because, the legal heirs of deceased 1[st] appellant has not come up for pursuing the appeal, it will be an injustice to continue the sentence of fine imposed on the 1[st] accused.** **Hence, this appeal is allowed, as follows: (i) The appeal is abated as far as the** CRL.APPEAL NO.2190 OF 2006 9 **sentence of imprisonment imposed on the first appellant.** **(ii) The conviction and sentence imposed on the second appellant is set aside. He is set at liberty. The bail bond, if any, executed by him, is cancelled. (iii) Since I am acquitting the second appellant on a defect which would affect the prosecution case itself, the sentence of fine imposed on the deceased first appellant is also set aside.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**