JUDGMENT

This Crl.Appeal is filed against the conviction and sentence imposed on the appellant as per judgment dated 21.11.2007 in SC No.1270 of 2002 on the file of the Additional Sessions Judge (Abkari cases) Kottarakkara. The above case is charge sheeted against the appellant alleging offences punishable under Section 55(a) and (i) of the Abkari Act.

2. The prosecution case is that on 26.11.1999 at 5.30 pm, the accused was in possession and engaged in the sale of 1 1/2 litres of arrack in a 2 1/2 litre black can by standing on the nadavarambu of Nalloottu paddy feilds on the eastern side of Mangalasseri house, Kottavattom which was detected by CW5 the Sub Inspector of Police, Kunnicodu and his party. CW5 has seized the contraband articles, arrested the accused, registered Crime No.342/99 of Kunnicodu Police Station, conducted the investigation and laid the charge.

3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P6 were marked on the side of the prosecution. MO1 is the material object. One witness was examined on the side of the defence as DW1. After going through the evidence and the documents the trial court found that the accused committed the offence punishable under Section 55(a) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs.1,00,000/, in default of payment of fine, the accused is directed to undergo imprisonment for another three months.

Aggrieved by the conviction and sentence, this appeal is filed.

4. Heard the counsel for the appellant and the public prosecutor.

5. The counsel for the appellant submitted that there is three days delay in producing the contraband article before the Court and there is absolutely no explanation for the same. The counsel submitted that even if there is delay of only one day, it is the duty of the prosecution to explain the same. The public prosecutor submitted that there is no undue delay in producing the article.

6. This Court considered the contention of the petitioner and the public prosecutor.

7. In Thulaseedharan Raghavan v. State of Kerala [2021 KHC 3540], in Surendran v. State of Kerala [2021 KHC 2441], in Ramachandran v. State of Kerala and Another [2021 KHC 3235], in Prakash Chellappan, P.T. Bhavanam v. State of Kerala [2021 KHC 2426], in Mahesh v. State of Kerala and Another [2020 KHC 5301], in Balachandaran v. State of Kerala [2020 (3) KHC 697], in Sukumaran v. State of Kerala [2019 (3) KLT 920] and in Ravi v. State – S.I of Police Meppadi [2018 (5) KHC 352] this Court considered the above point in detail. It will be beneficial to extract the decision in Thulaseedharan Raghavan’s case (supra) here:

“6. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to the prosecution case. In this case, since there was long and unexplained delay from 30.10.1997 to 04.12.1997 in producing the contraband and the samples before the court, 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 appellant. Consequently, there is no satisfactory link evidence to connect the appellant with the samples analysed in the laboratory. In the said circumstances, the appellant is entitled to be acquitted.”

8. In the light of the above decisions, the delay of three days is fatal in this case and the appellant is entitled to the benefit of doubt.

Therefore, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellants as per judgment dated 21.11.2007 in SC No.1270 of 2002 on the file of Court of the Additional Sessions Judge (Abkari cases), Kottarakkara is set aside. The bail bond, if any, executed by the accused is cancelled.