Kerala High Court
Sunil S/O.Lalmen vs State Of Kerala (Chombala Police ... on 15 October, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939
CRL.A.No. 25 of 2016 (C)
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AGAINST THE JUDGMENT IN SC 439/2015 OF THE COURT OF SESSIONS,
KOZHIKODE DIVISION DATED 15-10-2015
JUDGMENT IN CP 48/2015 of J.M.F.C.,VADAKARA
APPELLANT:
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SUNIL S/O.LALMEN, C.NO.812/15, CENTRAL PRISION, KANNUR
BY ADV. ADV. P.G..JAYASHANKAR (STATE BRIEF)
RESPONDENT:
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STATE OF KERALA (CHOMBALA POLICE STATION,
CR.NO.398/2014)
BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.25 OF 2016
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Dated this the 18th day of December, 2017
JUDGMENT
When this appeal came up for hearing, Adv.P.G.Jayashankar appearing for the appellant as State Brief submitted before this court that here is a case where without legal evidence the appellant was convicted by the trial court.
2. It is the submission that even though as per seizure mahazar, the quantity of liquor involved was 4 bottles of 500ml. each containing brandy of Mc.Dowell's brand, 4 bottles of 500 ml. each brandy of Honey Bee brand and further another bottle containing 375 ml. of Mansion House, French brandy, another 750 ml. of liquor of Mansion House brand, French Brandy and another 375 ml. IMFL of Magic Movement Vodka, only four bottles were produced before the Magistrate while inventory was prepared. It is the further submission that as per the inventory, it can be seen that Crl.Appeal No.25/2016 2 there was only four bottles wherein the total quantity involved is only two litres.
3. As per the forwarding note which was marked as Ext.P8, the unbroken bottles were forwarded for analysis which are marked as S1, S2, S3, S4 and S5. It is the further submission that when the quantity produced before the Magistrate was only two litres and when there was no specification regarding the quantity sent for analysis, it cannot be said that actually an excess quantity was involved. It is the further submission that when excess quantity is not involved, by using Section 64 of the Abkari Act, a conviction cannot be entered into for an offence under Section 55(a) of the Abkari Act. It is also the submission that as per the prosecution case, the main allegation was that the article was brought from Pondicherry State and thereby imported the liquor without licence or permit. But at the very same time no witness or any other material except a bald allegation that bottles contained a label wherein it was stated that the liquor was meant for sale at Crl.Appeal No.25/2016 3 Pondicherry is made as the basis of conviction. But it is the submission that no legal evidence produced to substantiate this claim.
4. Heard learned Public Prosecutor. The learned Public Prosecutor submitted before this court that all the legal formalities were complied with.
5. I perused the records and evidence in this case. It can be seen that here is a case where the inventory was marked before the court. No photographs as contemplated under Section 53 A (2)
(b) is seen produced. But at the very same time, the prosecution is relying upon the label allegedly upon the bottle. In this regard, I very carefully examined Ext.P10. There is description of the label allegedly seen upon the bottle. But the very same time, the inventory in which Magistrate countersigned, the said description is missing. Under such circumstances this court cannot come to a conclusion that there was a label where there was writing to the effect that the contraband was for sale in Pondicherry alone. If the Crl.Appeal No.25/2016 4 inventory also contained such a label description, the position would have been different.
6. Now, another aspect is also relevant to be noted in this case i.e. here is a case where at the time of seizure, sampling was done by the Police by using the investigation kit. The said sample was forwarded to the court and thereon it was sent for analysis. Thus, it is evident and clear that no sampling was done in front of the Magistrate as contemplated under Section 53 A of the Abkari Act. The corollary is that sample was not available before the court at the time of trial. It can be further seen that during trial as per the evidence of PW1 it is stated that b