Kerala High Court
A.V.Rajan vs State Of Kerala (S.H.O. Dharmadam on 15 October, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938
CRL.A.No. 2164 of 2007 ( )
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AGAINST THE JUDGMENT IN SC 331/2003 of ADDL.DISTRICT COURT (ADHOC)-
III, THALASSERY DATED 15-10-2007
APPELLANT/ACCUSED:
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A.V.RAJAN, S/O. VELAYUDHAN
AGED 53 YEARS, ELAMBILATH HOUSE, KANDAMKUNNU AMSOM,
DESOM, KUTHUPARAMBA, THALASSERY.
BY ADV. SRI.P.P.RAMACHANDRAN
RESPONDENT/COMPLAINANT:
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STATE OF KERALA (S.H.O. DHARMADAM
POLICE STATION) THALASSERY, REPRESENTED BY, PUBLIC
PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.K.K.DEEPA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.2164 OF 2007
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Dated this the 7th day of March, 2017
JUDGMENT
This criminal appeal is filed against the conviction and sentence passed in S.C.No.331/2003 on the files of the Court of Sessions, Thalassery. The appellant is the accused. The facts necessary for disposal of this appeal is as follows :
On 22.8.2001, the Sub Inspector of Dharmadam Police Station, while checking the vehicles on the national highway, found the accused standing at Koduvally bus stop holding a plastic bag in his hand. On suspicion, he was questioned and found that the bag contained six bottles of Indian Made Foreign Liquor each bottle contained 375 ml. Thereafter seeing that the said bottles lack the sticker of Kerala State Beverages Corporation, he was arrested and articles were seized and a crime was registered. An investigation was conducted and charge submitted before the court. PWs 1 to 5 were examined and Exts.P1 to P7 were marked. No material objects were marked. The court found Crl.Appeal No.2164/2007 2 that the accused committed an offence under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for one month.
2. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted that there is no total prohibition in our State. At that point of time, Indian Made Foreign Liquor was permissible . But as per the Rules and notifications, only 3 litres of IMFL can be possessed by a person, provided it is purchased from a licenced vendor in the State. It is the further submission that, in this case, the positive case of the prosecution is that the bottles do not have the seal or sticker of the Kerala State Beverages Corporation. But the said bottles allegedly seized are not seen marked in the proceedings. It is also submitted that even though the said articles are seized on 22.08.2001, the same reached the court only after six days. It is further submitted that, in this case, it appears that an investigation was Crl.Appeal No.2164/2007 3 conducted by an officer outside the limits of the police station which is not proper as held by this Court in Haridas v. State of Kerala ( 2015 (1) KLT 958). It is further submitted that independent witnesses in this case declared hostile and that Ext.P6 which is the copy of the forwarding note provided by the investigating officer to the court, on which the article was forwarded, lacks the specimen seal. This aspect attains importance especially when the contraband reached before the court belatedly as well as the material objects are not marked in the proceedings. Under such circumstances, it is submitted that the appellant is entitled for benefit of doubt. To support this argument, the learned counsel also relied on the decision of this Court in Krishnan H. v. State of Kerala (2015 (1) KHC 822).
3. I heard the learned Public Prosecutor. The learned Public Prosecutor submitted before me that the appellant got no case that the article was not produced before the court. The only case is that there was delay in producing the same. When the articles are produced Crl.Appeal No.2164/2007 4 before the court, even if it is not marked as material object, it can be seen that the court received the articles as per the property list marked as Ext.P4. Even though material objects are not marked, it can be seen that no illegality is committed by the court in coming to a conclusion that the actual articles seized by the Police reached at the court. It is also the submission made before me that, in this case, the investigation by a Police Officer outside the limits of the police station only benefited the accused and ensured an impartial investigation. In this case no prejudice caused to the appellant, but only it was for the benefit of the appellant, that also to ensure impartial investigation. It is the submission that on the basis of all these aspects, there is no illegality committed by the court and the appeal has to be dismissed.
4. After hearing both sides, I have perused the records in this case. It can be seen that as per Ext.P3, crime was registered by the Police on 22.08.2001 for an offence under Section 55 (a) of the Abkari Act as Crime No.144/01 of Dharmadam Police Station. The allegation Crl.Appeal No.2164/2007 5 was that on 22.8.2001 at about 19.00 hours, appellant was seen in possession of six bottles of IMFL each containing 375 ml. The said articles are seized as per seizure mahazar Ext.P2. It was forwarded to the court as per Ext.P4 and the said document reached at the court only on 29.8.2001 as per the endorsement of the Magistrate. In this case, the witnesses examined before the Court are PW1 who is the Sub Inspector. He deposed regarding the seizure. PW2 turned hostile. PW3 also turned hostile. PW4 is the person who filed the charge. PW5 is the investigating officer. He was the Additional Sub Inspector of Tellichery Police station, i.e. the neighbouring police station. The quantity involved in this case is only a bit higher than 2 litres, but below 3 litres of IMFL.
5. The main point highlighted is that the bottles lack the sticker of Kerala State Beverages Corporation. But it is pertinent to note that the said material objects are not produced before the court. Surely, the property list is marked as Ext.P4 before the court. But that Crl.Appeal No.2164/2007 6 alone will not be sufficient when the main aspect on which the prosecution relies is that the bottles lack the sticker of the Kerala State Beverages Corporation. More over, in this case it can be seen that the appellant also got a case that Ext.P6 lacks the specimen sample seal.
6. I have perused the same. It is seen that the impression of the specimen seal is lacking . It is also the case of the defence that the articles reached the court only after six days of the seizure. I have perused Ext.P4 which also shows that it reached the Magistrate Court only on 29.08.2001. In the light of delay, tampering cannot be ruled out.
7. Thus, considering all aspects including the fact that there was no total prohibition during the relevant period and further that the contraband is below 3 litres and also considering all other aspects like delay in reaching before the court and also the fact that there was no specimen impression seal seen on the forwarding note, I feel that the conviction entered into by the court below is not proper. Hence the Crl.Appeal No.2164/2007 7 conviction and sentence imposed by the trial court is hereby set aside. The bail bonds stand cancelled.
The appeal is allowed.
K.P.JYOTHINDRANATH JUDGE sv.