Sreekumar @ Vaidyan Melamcode and Rajan Chokkamvila Veedu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **CRL.A.No.1862 OF 2004** **AGAINST THE JUDGMENT IN SC NO.1090/2002 DATED 20-10-2004 OF THE ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-1), THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED NOS.2 AND 3:** - **1 SREEKUMAR @ VAIDYAN MELAMCODE, CHARUVILA LANE, PAI ROAD, MUDAVANMUGHAL WARD, THIRUMALA VILLAGE.** - ***2 RAJAN CHOKKAMVILA VEEDU [DIED] BEHIND OF POPULAR AUTOMOBILES, NEDUMCAUD, HAILING FROM THEKKEMANNAMVILAKAM PUTHEN VEEDU, NEAR ARUMANOOR GANAPATHY TEMPLE, ARUMANOOR WARAD, THIRUPURA VILLAGE.** **A1 BY ADV. K.K.DHEERENDRA KRISHNAN, AMICUS CURIAE** ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY SR.GOVERNMENT PLEADER SRI.B. JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-6-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1862 OF 2004 2 ## **J U D G M E N T** **This appeal is filed by the second and third accused in Sessions Case No.1090 of 2002 on the file of the Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram. The above case is charge sheeted by the Additional Sub Inspector of Police, Fort Police Station, Thiruvananthapuram against the appellants and two others alleging offence punishable under Sections 55(a) and 55(i) of the Abkari Act.** **2. The first accused in the case died pending trial. The trial court acquitted the fourth accused. The trial court found that, accused Nos.2 and 3 are guilty of the offence punishable under Section 55(a) of the Abkari Act. But they are acquitted under Section 55(i) of the Abkari Act.** **3. This appeal was filed in 2004. When the appeal was posted for hearing, there was no representation to the appellants. The counsel appeared, in this case, was elevated as a Judge, and hence, this Court issued notice to the appellants directly as per the order dated 8.2.2018. Notice was repeated on 12.07.2019. When** CRL.APPEAL NO.1862 OF 2004 3 **the matter came up on 6.2.2020, this Court adjourned the matter because notice is not returned. Thereafter, when the matter came up on 17.6.2020, this Court passed the following order:** _**“ In this case notice was issued to the appellant through Inspector of Fort Police Station, Thiruvananthapuram. The Inspector of Fort Police Station informed that the 2[nd] appellant expired on 25.12.2005. Notice was served to the first appellant. Today, there is no representation to the first appellant also. This appeal is filed in 2004 and there is no representation in this appeal for a long period. In such circumstances, I appoint Adv. Sri.K.K.Dheerendra Krishnan as Amicus Curiae in this case. He will get ready on 18.06.2020.**_ _**The registry will issue a legible copy of the depositions and documents to Adv.Sri. K.K.Dheerendra Krishnan today itself."**_ **The report of the Inspector of Fort Police Station, Thiruvananthapuram will form part of this record. Now, only the first appellant who is the second accused in the trial court is before this Court. Even though notice was issued, he refused to appear, and hence as mentioned above, I appointed Sri.K.K.Dheerendra** **Krishnan as Amicus Curiae in this case.** CRL.APPEAL NO.1862 OF 2004 4 **4. Heard Advocate K.K.Dheerendra Krishnan, Amicus Curiae, appearing for the first appellant and the learned Public Prosecutor.** **5. Advocate K.K.Dheerendra Krishnan, Amicus Curiae submitted that, there is no Analyst report in this case. The Counsel submitted that, the trial court convicted the accused merely for the reason that the bottles seized are having the seal of the Beverages Corporation. The Counsel further submitted that, the seizure of the property was on 9.5.2001 and the property reached in the court only on 30.5.2001. There is no explanation for the delay in producing the article before the court. The Public Prosecutor submitted that the prosecution proved the offence by adducing oral and documentary evidence.** **6. The prosecution case, in brief, is that on 9.5.2001 at 10 p.m., accused 2 to 4 were found in possession without any licence or permit MO1 series 23 bottles of Indian made foreign liquor of the brand of Colombia brandy each bottle having a capacity of 375 ml. having a total quantity of 8.625 litres kept in MO2 big shopper bag for the purpose of sale which belonged** CRL.APPEAL NO.1862 OF 2004 5 **to the first accused and entrusted to A2 to A4 for the purpose of retail sale on the back of the shop bearing No.TC 21/54 near Killipalam, PRS Hospital, Nedumcaud ward, Manacaud village and hence it is alleged that, the accused committed the offence.** **7. To substantiate the case, the prosecution examined PWs.1 to 6. Exhibits P1 to P6 are the exhibits marked on the side of the prosecution. MO1 to MO3 are the material objects.** **8. The trial court found that, the accused Nos.2 and 3 committed the offence under Section 55(i) of the Abkari Act and sentenced them under that Section. Accordingly, accused 2 and 3 are sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,00,000/-each. In default of payment of fine, they are directed to undergo Rigorous imprisonment for six months each.** **9. After hearing both sides, the point to be considered is whether the offence under Section 55(i) of the Abkari Act is made out in this case against the appellant.** CRL.APPEAL NO.1862 OF 2004 6 **10. Admittedly, in this case, there is no Analyst report to show that, the seized contraband is Indian made foreign liquor, as alleged by the prosecution. The prosecution relies on Ext.P3 to show that, the seized articles are purchased from the Kerala Beverages Corporation. Exhibit P3 is a label statement issued by the Manager, Kerala State Beverages (M & M) Corporation, Ware House, Pazhakutty, Nedumangad, Thiruvananthapuram. Simply because there is a seal of the Kerala Beverages Corporation in the contraband articles, it cannot be presumed by the Court that it is Indian made foreign liquor. Unless the prosecution proved that, the seized articles are Indian made foreign liquor with the help of expert opinion, the Court cannot convict the accused simply based on Ext.P3. The trial court found that, the oral testimony of PW3 supported with documentary evidence of Ext.P3 clearly proved the prosecution case that, MO1 series 23 bottles contain Indian made foreign liquor sold from the shop No.16 of the Kerala State Beverages Corporation, Killippalam. The court was only looking into the labels in the bottle. Whether the contents are** CRL.APPEAL NO.1862 OF 2004 7 **Indian made foreign liquor is to be established by an expert opinion. Without the same the accused cannot be convicted. Moreover, the seizure was on 9.3.2001. The property was produced before the court only on 30.5.2001. There was no proper explanation from the prosecution for not producing the articles before the court within time. This point is 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). Since there is no explanation for not producing the contraband article immediately after seizure, I think, the accused is entitled the benefit of doubt on this ground.** **11. It is reported that the 2[nd] appellant/3[rd] accused in this case has died, and his death certificate is also produced. The legal heirs of the 2[nd] appellant/3[rd] accused have not approached this Court. Since I am allowing this appeal in favour of the first appellant/2[nd] accused on a point narrated above, which will go to the root of the prosecution case, I think, the benefit of doubt will also go to the deceased 2[nd]** CRL.APPEAL NO.1862 OF 2004 8 **appellant/3[rd] accused because a sentence of fine is also there. Even though the legal heirs/near relatives have not filed any application to pursue his appeal, I think, in the interest of justice, the sentence of fine imposed on the deceased 2[nd] appellant/3rd accused is also to be set aside.** **In the result;** - **i) The appeal is allowed;** **ii) The conviction and sentence imposed on the first appellant/2[nd] accused are set aside, and he is set at liberty. Bail bond, if any, executed by him is cancelled.** **iii) The appeal, as far as the 2[nd] appellant/3[rd] accused is concerned, is abated. In the light of the findings in this judgment, the sentence of fine imposed on the 2[nd] appellant/3[rd] accused is also set aside.** **Sd/-** **pkk** **P.V.KUNHIKRISHNAN JUDGE**