Raju s/o Kunju Kunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** ## **CRL.A.No. 1275 of 2005 ( )** ## **---------------------------** **AGAINST THE JUDGMENT IN SC 594/2003 of ADDITIONAL SESSIONS COURT, FAST TRACK COURT-I, ALAPPUZHA DATED 06-07-2005** **APPELLANT(S)/ACCUSED::** **---------------------** **RAJU, S/O. KUNJU KUNJU, KUTTIYIL VADACKATHIL, VALLIKUNNAM MURI,, VALLIKUNNAM VILLAGE.** **BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN** ## **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF** **KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **shg/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1275 of 2005** **- - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of March, 2017** ## **J U D G M E N T** This is an appeal preferred by the appellant challenging the conviction and sentence dated 6.7.2005 in S.C.No.594/2003 on the file of the Additional Sessions Judge, Fast Track Court-I, Alappuzha. The conviction is under Section 8 (1) and (2) of the Abkari Act. 2. When the appeal came up for hearing, the learned counsel for the appellant submitted before me that the allegation of the prosecution is that the petitioner was found in possession of 750 ml. of arrack on 16.3.2002 by the excise party and the excise party seized the article and a sample was drawn, sealed and the article was produced before the excise office, upon which a crime was registered. The articles were forwarded to the court and thereafter a final report was filed. The trial court tried the case. PWs 1 to 5 were examined. Exts.P1 to P4 were marked. On the side of the defence, DW1 was examined. MO1 was also marked. Crl.A.No.1275 of 2005 2 After appreciating the evidence, the court below convicted the accused and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default simple imprisonment for six months. Aggrieved by the above conviction and sentence, this appeal is preferred. 3. The submission of the learned counsel for the appellant is that during the relevant period there was no total prohibition in our State. The quantity of the contraband allegedly seized from the petitioner is only 750 ml. which is much below the quantity of Indian made foreign liquor, which could have been possessed during the relevant period. When alleged quantity is only 750 ml., there is burden to show that it is not Indian made foreign liquor. It is the further submission that even though the prosecution got a definite case that the sample taken from the contraband is sealed and forwarded to the court, it can be seen that the specimen seal is nowhere seen. It is the submission that in this case even the forwarding note is not 3 Crl.A.No.1275 of 2005 produced before the court. Under such circumstances neither the court nor the chemical analyst got an opportunity to verify or rule out the tampering of the material. It is also the case of the appellant that even though it is alleged that he was arrested on 16.3.2002, final report was filed by the Investigating Officer only on 26.2.2003 i.e. almost after one year which is mandate under Section 50 of the Abkari Act. 4. The learned Public Prosecutor submitted before me that, in this case the appellant was seen with 750 ml. of arrack in a bottle and it was seized by the excise officials. It is the further submission that Ext.P3 will reveal that the said article reached at the court on 16.3.2002 itself. i.e. there is a prompt delivery of the article before the court on the very same day. That itself will ensure that there is no tampering. The next point argued before me is that Ext.P4 is the analyst report which will show that it contained 32.99% of ethyl alcohol. The percentage of ethyl alcohol is an indication that it is not an Indian made foreign liquor. 4 Crl.A.No.1275 of 2005 Thus, the sum and substance of the argument advanced by the prosecution is that here is a case where by oral and documentary evidence, prosecution succeeded in proving possession of arrack by the appellant as such an interference of this court is not warranted. 5. After hearing the prosecution as well as the appellant, I have perused the documents in this case. As per Ext.P1 seizure mahazar, it can be seen that while the police party was travelling through the road, the accused was seen with a bottle and on interception it was seen that it was arrack and he was arrested and the contraband was seized, a mahazar was prepared as well as 200 ml. of sample was lifted, that also sealed. Thereafter accused was produced before the Excise office and a crime was registered. An occurrence report was sent to the court. That also reached the court on the very same day. 6. PW1 is the detecting officer in this case. He deposed before the court that while he reached before the M.R. Junction, the appellant herein was seen with a bottle of Crl.A.No.1275 of 2005 5 about 750 ml. On tasting and smelling found that it was arrack. 200 ml. of sample was lifted. A mahazar was prepared. The articles were sealed and the bottle seized. The bottle was marked as MO1 before the court. His case is that the article and person was entrusted to the Range Office. Nothing is brought out to disbelieve the evidence of this witness. PW2 is the Excise Guard who accompanied PW1. PW3 is an independent witness who declared hostile. PW4 is an independent witness who also not supported the prosecution. PW5 is the Excise Range Inspector who filed the complaint. The chemical analysis report is marked as Ext.P4 through him. 7. In this case the main argument advanced before me is two folds: one is that there is no material before the court to come to a conclusion that the sample taken on the said day was actually analysed by the analyst, who issued Ext.P4. The counsel advanced the second fold of argument, i.e. delay. It is the definite case of the appellant that here is an inordinate delay in filing the complaint. He brought to Crl.A.No.1275 of 2005 6 the notice of this court to Section 50 of the Abkari Act and it is also submitted that when there is inordinate delay, every case has to be suspected. It is also pertinent to note that no arrest memo is produced in this case. He relied upon the decision of this court in **Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308]** i.e. his case is that the fact has to be appreciated on the background that the appellant got a case that there was altercation in between the appellant and the excise officials and when there is no arrest memo, it will cast a suspicion upon the case of the prosecution presented before the court now. The dictum laid down by the decision of this court in Ramankutty's case (supra) is relevant in this case. Thus considering the totality of the case and also keeping in mind that the quantity of the arrack involved is only 750 ml., I feel that the appellant can be given the benefit of doubt in this case. There was no total prohibition on the relevant point of time. The only evidence to show that the article was arrack is the oral evidence of the witness. Under such 7 Crl.A.No.1275 of 2005 circumstances, benefit of doubt extended in this case. Hence the appeal is allowed. The conviction and sentence passed by the court below is hereby set aside. Bail bond stands cancelled. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/