Kerala High Court
B.K. Ajayan vs The State Of Kerala on 4 April, 2016
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938
Crl.Rev.Pet.No. 4177 of 2006 ( )
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Crl.A 322/2004 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE
SC 499/2000 of ASST. SESSIONS COURT, HOSDURG
REVISION PETITIONER/APPELLANT/ACCUSED::
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B.K. AJAYAN, AGED 25 YEARS,
S/O.KUNHIRAM, KARIPPADAKATH HOUSE, ELERITHATTU COLONY,
ELERITHATTU DESOM, WEST ELERI VILLAGE.
BY ADV. SRI.T.K.VIPINDAS
RESPONDENT(S)/COMPLAINANT::
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THE STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
04-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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Crl.R.P. No.4177 of 2006
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Dated this the 4th day of April 2016
O R D E R
The accused in S.C.No.499 of 2000 on the files of the Assistant Sessions Court, Hosdurg filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 55
(a) of the Abkari Act.
2. Heard.
3. The prosecution allegation is that on1.10.1999 at about 8.10 p.m., the revision petitioner was found in possession of 20 packets of arrack, each packet having a Crl.R.P.4177/2006 : 2 : capacity of 100 ml each, for the purpose of sale, in contravention of the provisions of the Abkari Act.
4. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P8 were marked for the prosecution, besides identifying MO1. DW1 was examined and Exts.D1 to D3 were marked for the revision petitioner.
5. The learned counsel for the revision petitioner has argued that even though the incident in this case was on 1.10.1999, the contraband articles and the samples were produced before the court only on 4.10.1999 and in the said circumstances, the revision petitioner is entitled to benefit of doubt. It is borne out from Ext.P5 Property List that the contraband articles and the samples were produced before the court only on 4.10.1999. PW1 stated that the Crl.R.P.4177/2006 : 3 : contraband articles were kept in his safe custody during the night of the date of incident and on the next day, he handed over the same to the Sub Inspector of Police. PW5, the Sub Inspector of Police, on the other hand, stated that he handed over the contraband articles and the samples to the Station Writer for his custody till their production before the court. However, the Station Writer was not examined before the court to prove the safe custody of the samples till their production before the court. PW5 further stated that there was no reason for the delay in producing the contraband articles and the samples before the court. The delay as such is not always fatal. However, if the delay is not explained, it is fatal to the prosecution case. In this case, there was unexplained delay in producing the Crl.R.P.4177/2006 : 4 : samples before the court. There is also no convincing evidence to prove the safe custody of the contraband and the samples till their production before the court. In the said circumstances, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the revision petitioner. The above vital aspect was not considered by the courts below while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained.
In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act and the revision petitioner is acquitted for the said offence. The Crl.R.P.4177/2006 : 5 : bail bond of the revision petitioner stands cancelled and the revision petitioner is set at liberty.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/5.4..2016 // True Copy // PA to Judge