Kerala High Court
Judge For The Trial Of Akbari Act Cases vs Sathy on 8 February, 2018
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939
CRL.A.No. 1541 of 2005
AGAINST THE JUDGMENT IN SC 1098/2000 ON THE FILES OF THE COURT OF ADDL. SESSIONS
JUDGE FOR THE TRIAL OF AKBARI ACT CASES, NEYYATTINKARA
APPELLANTS/ACCUSED 1 AND 2
1 SATHY, S/O.CHANDRAN,
VARATTAYAM MUNDAPALVILA PUTHEN VEEDU,, KOTTAKKAL
DESOM, KUNNATHUKAL VILLAGE.
2 KUTTAN, S/O KOCHUKUNJU NADAR,
VARATTAYAM, THANNIMOOLA KIZHAKKIMKARA PUTHEN VEEDU,
KOTTAKKAL DESOM, KUNNATHUKAL VILLAGE.
BY ADVS.SRI.G.P.SHINOD
SRI.MANU V.
SRI.RAM MOHAN.G.
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR AT HIGH COURT OF
KERALA.
BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.1541 OF 2005
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Dated this the 8th day of February, 2018
JUDGMENT
This appeal is preferred against the judgment of conviction and sentence made in S.C.No.1098/2000 on the files of the Court of Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara. The conviction is under Section 55(a) and (i) of the Abkari Act and sentence is to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- with default rigorous imprisonment for six months.
2. When the appeal came up for hearing, the learned counsel for the appellants submitted that here is a case where a joint trial was conducted in respect of alleged separate possession of arrack by two persons. It is not a case which will come under the purview of Section 223 of Cr.P.C. The possession of liquor is Crl.Appeal No.1541/2005 2 the offence attracting Section 55(a) of the Abkari Act whereas sale is the main ingredient to attract Section 55(i) of the Abkari Act. When possession is the ingredient of Section 55(a) and when there is no case for the prosecution that there was joint possession, then there is prejudice caused especially when the prosecution has not produced arrack allegedly seized from one of the accused during the trial.
3. The next point highlighted by the learned counsel for the appellants is that here is a case where allegedly sample was taken from the court and the analysis report was obtained. No application for taking sample from the court is seen produced. No judicial order passed by the court to take sample is also produced. The Magistrate who allegedly ordered to take sample is also not a witness. It appears that court on an application under Section 311 of Cr.P.C. examined the thondi clerk without any documentary evidence. She deposed that sample was taken from the alleged containers which were actually not before the court. Under such Crl.Appeal No.1541/2005 3 circumstances, the whole evidence adduced by the prosecution is under suspicion and as such the appellants are entitled for benefit of doubt. It is also submitted that the seizure mahazar which was marked as Ext.P1 should have contained the specimen impression of the seal affixed while sealing the contraband. When such an impression of the seal is missing and when there is only a description in the property list that containers containing arack was produced, it also casts a doubt whether the procedures stated by the detecting officer is a reliable one. This aspect is important especially when the thondi clerk got a case that the forwarding note was obtained from the officials to forward the articles for analysis. The clerk categorically deposed that b