Kerala High Court
Unknown vs Santhosh on 8 January, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939
CRL.A.No. 163 of 2007
AGAINST THE ORDER/JUDGMENT IN SC 420/2006 of ADDITIONAL DISTRICT AND
SESSIONS COURT (ADHOC-III) NORTH PARAVUR DATED 8.01.2007
APPELLANT(S)/ACCUSED
SANTHOSH, S/O.SINKARAN,
PLAVUMPARAMBIL VEEDU, THATHAPPILLY KARA,, KOTTUVALLY
VILLAGE,
BY ADV.SRI.S.RAJEEV
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,,
(CRIME NO.33/2004 OV VARAPPUZHA EXCISE RANGE).
BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SHG/
K.P. JYOTHINDRANATH, J.
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Crl.A.No.163 of 2007
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Dated this the 19th day of February, 2018
JUDGMENT
This appeal is preferred against the judgment of conviction and sentence dated 8.1.2007 made in SC 420/2006 on the files of the Additional District and Sessions Court (Adhoc-III), N. Paravur. The conviction is under Section 8 (1) and (2) of the Abkari Act. The sentence is to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1 lakh with default rigorous imprisonment for six months.
2. The case of the prosecution is that on 23.12.2004 at 11 a.m the accused was found in possession of 10 ltrs of illicit arrack and thereby committed the offence.
3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that here is a case where the appellant was falsely implicated in an abkari case or in other words a false case was foisted against the appellant. It is the submission of the learned counsel that in this case neither the property list Crl.A.No.163 of 2007 2 nor the forwarding note was marked during trial. Even though a specific question was put during cross examination that the forwarding note produced before the court lacks the specimen seal impression, the witness admitted the same. For the said reason, it can be assumed that, the said forwarding note was not marked. An unmarked document cannot be looked into. When the property list is not before the court, there is nothing to show that the property was produced before the court forthwith. Hence, the appellant is entitled for benefit of doubt.
4. I heard the learned Public Prosecutor.
5. After hearing the learned Prosecutor, I perused the appendix attached to the judgment which shows that only 6 documents were marked in the proceedings, that are seizure mahazar, arrest memo, arrest intimation, crime and occurrence report, site plan and chemical analysis report. Thus, what comes out is that neither the property list nor the forwarding note was marked during the trial. The thondi Crl.A.No.163 of 2007 3 clerk was also not seen examined. As per the dictum laid down by this court in Raju v. State of Kerala [2012 KHC 877], the article should have been forwarded forthwith. It can be proved only by the marking of the property list or producing an extract of thondi register. It was not seen done in this case.
6. The next aspect highlighted by the learned counsel is regarding the non-marking of the forwarding note. The dictum laid down by this Court in Krishnan H. v. State (2015 (1) KHC 822) is relevant to be noted. Thus, following the dictum laid down in Raju's case (supra) and in Krishnan's case (supra), I feel that the appellant is entitled for benefit of doubt. Hence the appeal is allowed setting aside the conviction and sentence passed by the court below against the appellant. The bail bond stands cancelled.
Sd/-
K.P. JYOTHINDRANATH, JUDGE shg/