Kerala High Court
Velayudhan vs State Of Kerala on 3 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939
CRL.A.No. 1248 of 2008 ( )
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AGAINST THE JUDGMENT IN SC 264/2005 of ADDL.SESSIONS COURT (ADHOC)-
II, KOZHIKODE DATED 03-06-2008
APPELLANT/ACCUSED:
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VELAYUDHAN, S/O.KORAN, POOLAPPARAMBIL
HOUSE, POOLAKKODE AMSOM, KOZHIMANNA ROAD,, KOZHIKODE.
BY ADVS.SRI.P.V.KUNHIKRISHNAN
SMT.BINDU GEORGE
RESPONDENT/COMPLAINANT & STATE:
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STATE OF KERALA, REP.PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.1248 OF 2008
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Dated this the 5th day of June, 2017
JUDGMENT
This appeal is preferred against the judgment of conviction and sentence dated 3.6.2008 made in S.C.No.264/2005 on the files of the Court of Additional District and Sessions Judge, Fast Track (Adhoc II), Kozhikode. The conviction was under Section 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for six months.
2. The facts of the case is that on 26.11.2001 at about 12.30 p.m., the accused was found carrying 2 litres of arrack and thereby committed the offence. Seizure made, sample lifted, crime registered and after investigation, final report was filed. The prosecution altogether examined seven witnesses and Exts.P1 to P7 were marked. MO1 was also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. Crl.Appeal No.1248/2008 2
3. When the appeal came up for hearing, the main argument advanced before me by the learned counsel is that here is a case where there was no property list marked i.e. there is nothing before the court to show that at what point of time actually the sample as well as seized articles reached before the court. It is the mandate of the law that it should be forwarded forthwith. There should be positive evidence to show that the article reached before the court forthwith. The learned counsel also invited my attention to the decision in Raju v. State of Kerala ( 2012 KHC 877) as well as Ravi v. State of Kerala ( 2011 (3) KHC 121). It is also the submission that there was also violation of the mandate under Section 50 of the Abkari Act. In this case even though detection was on 26.11.2001, the final report was filed only on 11.02.2004. The inordinate delay was not explained.
4. I heard the learned Public Prosecutor. The learned Public Prosecutor submitted before me that the property list is available in the case file. It is only an omission to mark the same during trial. It is also submitted before me that delay caused in filing report only because Crl.Appeal No.1248/2008 3 there was delay to obtain the chemical analysis report. Hence there is nothing to interfere with the conviction entered into by the court below.
5. At this juncture, the learned counsel for the appellant submitted before me that lacuna cannot be filled in prejudicial to the appellant when the said lacuna is pointed out during argument.
6. In this case, the contraband involved is only two litres of arrack. At that point of time, there was no total prohibition. Arrack was alone prohibited. I perused the records. It is seen that the property list was not marked in the proceeding. An unmarked document cannot be considered at the appellate stage. Moreover, the said aspect was not put to the accused while questioning under Section 313 of Cr.P.C. As per the dictum laid down by this court in Raju's case, there should be positive evidence to show that the contraband was forwarded to the court forthwith. The said mandate is not seen followed in this case. There is no guarantee that there was no tampering.
7. The next point is regarding the delay in filing the final report. As per the dictum laid down by this Court in Krishnan H. v. Crl.Appeal No.1248/2008 4 State ( 2015 (1) KHC 822), a long delay in conducting the investigation is also a matter to be looked into.
Thus, considering all these aspects, it can be only held 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. The bail bond stands cancelled.
K.P.JYOTHINDRANATH JUDGE sv.