Kerala High Court
Raveendran vs State Of Kerala on 8 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY,THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939
CRL.A.No. 1547 of 2004 (B)
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AGAINST THE ORDER/JUDGMENT IN SC 491/2002 of ADDITIONAL SESSIONS COURT,
FAST TRACK COURT-II, ALAPPUZHA DATED 08-09-2004
APPELLANT(S)/ACCUSED::
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RAVEENDRAN, S/O. BHASKARAN,
KIZHAKKE KOYIKKAL VEEDU, VEEYAPURAM, PANCHAYATH IV/469,
PAYIPPADU MURI,, VEEYAPURAM VILLAGE.
BY ADV. SRI.K.P.DANDAPANI (SR.)
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA, REPRESENTED BY
EXCISE CIRCLE INSPECTOR, HARIPAD RANGE, REPRESENTED BY THE
PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SHG/
K.P. JYOTHINDRANATH, J.
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Crl.A.No.1547 of 2004
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Dated this the 27th day of March, 2017
J U D G M E N T
This appeal is preferred against the conviction and sentence dated 8.9.2004 made in S.C.No.491/2002 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha. The conviction is under Sections 8 (1), (2) and 55 (a) of Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default, rigorous imprisonment for six months.
2. The facts in a nutshell is as follows:
On 25.2.2000 at 5.30 p.m. a search was conducted at the house of the appellant herein and 8 bottles of coloured liquor was seized. A crime was registered. Final report was filed, PWs 1 to 7 were examined, Exts.P1 to P5 were marked. DW1 was examined and MOs 1 to 9 were also marked. After appreciating the evidence, the court below convicted and sentenced the accused. Aggrieved by the above conviction and sentence, this appeal preferred.
3. When the appeal came up for hearing, the points Crl.A.No.1547 of 2004 2 raised by the learned counsel appearing for the appellant before me is that, in this case even though the search list was therein, no forwarding note was marked before the court. It is also the submission that even though the detection is on 25.2.2000 the final report filed only on 29.6.2002. It is also the submission that when neither the property list nor the forwarding note produced before the court, the identity of the property is not satisfactorily proved before the trial court.
4. The learned Public Prosecutor submitted before me that surely the property list is not marked before the court. The property list can be seen in the record and it is only an omission. It is also pointed out that the unmarked document will reveal that the property list reached before the court immediately on the next day i.e. on 26.2.2000 itself. Similarly, copy of the forwarding note also can be seen in the file.
5. Unmarked documents cannot be looked into by this court at the appellate stage. Surely the fact that it can Crl.A.No.1547 of 2004 3 be marked by remanding the matter to the lower court or by taking evidence in the appellate stage. But as long as it is not marked in accordance with law, it cannot be looked into. Thus, when the property list as well as the forwarding note is not marked, there is force in the submission of the learned counsel appearing for the appellant that appellant is entitled for benefit of doubt as evident from the dictum laid down by this court in Kumaran P. v. State of Kerala & Anr. [I.L.R. 2017 (1) Kerala 330]. To canvass the position that there is inordinate delay, the appellant placed reliance on the decision reported in Krishnan H. v. State of Kerala [2015 1 KHC 822] i.e. the final report was filed only on 29.6.2002. There is force in the submission. Neither the property list nor the forwarding note marked in this case. There is also delay in filing the final report. The compliant was not filed in compliance with Section 50 of the Abkari Act. For the reasons stated above i.e. non marking of the forwarding note as well as the property list and on the background of the inordinate delay, the appellant is Crl.A.No.1547 of 2004 4 entitled to get benefit of doubt. This appeal is allowed setting aside the conviction and sentence imposed on the appellant. The bail bond, if any, executed by the appellant is cancelled.
The criminal appeal is allowed as above.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/