IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 1^ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 CRL.A NO. 1697 OF 2007 AGAINST THE JUDGMENT IN SC 681/2003 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), MAVELIKKARA APPELLANT/ACCUSED:

DAMODARAN, AGED 46 YEARS, S/O RAMAN, THUNDATHIL PADEETTATHIL,, PULIMEL MURI, NOORANAD VILLAGE, MAVELIKARA.

BY ADV SRI.S.SHANAVAS KHAN RESPONDENT/COMPLAINANT:

STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.BABU, J.

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Criminal Appeal No.1697 of 2007 ---------------------------------------

Dated this the 1^st day of February, 2024 JUDGMENT Aggrieved by the judgment dated 10.09.2007, passed by the Additional District and Sessions Court, Fast Track (Ad hoc), Mavelikkara, in S.C.No.681/2003, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three and half (3 1/2) years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 15.06.2002 at 6.00 p.m, the accused was found in possession of about 3 litres of illicit arrack in a 5 litre black cannas along with a glass at Pulimel Muri in Nooranad Village.

3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charges were framed against him for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences.

4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MOs 1 and 2.

5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences.

6. Heard Sri. S.Shanavas Khan, the learned counsel appearing for the appellant/accused and Sri. G.Sudheer, the learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:

(i) The delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution.

(ii) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been used by the detecting officer.

(iii) The forwarding note, which contains the specimen seal, has not been produced and marked.

(iv) The specimen seal was not produced before the Court.

8. The alleged seizure was effected on 15.06.2002. The properties, including the sample, were produced before the Court only on 17.06.2002, as is evident from Exhibit P7 property list. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows:

“8. We, therefore, answer the reference as follows:

1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the A