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2022 Supreme(Online)(KER) 56335
HIGH COURT OF KERALA
K. Babu, J
REJI AND ANOTHER – Appellant
Versus
STATE OF KERALA,REP.BY P.P.,H.C.OF KERAL – Respondent
CRL.A 2312 2009
The prosecution must satisfactorily establish the connection of seized contraband to the accused, including timely evidence handling to avoid reasonable doubt in criminal proceedings.
Headnote:
Conviction - Criminal Offences - Abkari Act, IPC - Sections 55(a), 55(i), 483, 484 - Court held that unexplained delay in production of evidence and failure to establish essential elements of the charges led to acquittal.
Fact of the Case:
The appellants were convicted for possessing unauthorized liquor and related offenses. The prosecution alleged they were running a licensed shop and seized contraband items. The evidence presented included witness testimonies and seized materials, but faced challenges related to procedural compliance.
Finding of the Court:
The court found significant lapses in the prosecution's evidence handling, particularly regarding the delayed production of seized items and lack of verification linking to chemical analysis. Essential evidence was deemed unreliable, impacting the overall case against the accused.
Issues: Whether the prosecution successfully established the accused's possession and the legitimacy of the seized liquor, and whether due process was followed in the arrest and evidence handling.
Ratio Decidendi: The court emphasized the necessity of timely evidence production and adherence to procedural mandates, ruling that lapses in these areas could undermine the prosecution's case, leading to reasonable doubt.
Final Decision: Accused Nos. 2 & 4 are acquitted of all charges.
JUDGMENT
This appeal arises from the judgment dated 30.10.2009 in S.C.No.278/2008 on the file of the Additional Sessions Court (Adhoc-I), Kottayam. Accused Nos. 2 & 4 are the appellants. The appellants were convicted under Sections 55 (a) and 55(i) of the Abkari Act and Sections 483 and 484 of IPC and sentenced to undergo rigorous imprisonment for 7 years each and a fine of Rs.Two Lakhs each.
P rosecution case
2. On 25.10.2000, the SI of Police, Kottayam (PW13)
searched the premises of the Deepa Wines, a licenced Foreign Liqour Shop functioning in building No.IX/542 at Kottayam. The detecting officer seized 2074 bottles of Indian Made Foreign Liquor unauthorizedly kept there. Those bottles of Indian Made Foreign Liquor did not have the stickers of the Beverages Corporation. The bottles were found transported to Kerala for the purpose of cheating and defrauding the Government and making undue profit. Accused Nos. 4 to 9 were arrested from the place of occurrence. The licencee of the shop was implicated as accused No.1. Accused Nos. 2 to 4 were impleaded alleging that they were conducting the shop for and on behalf of accused No.1. PW 13 registered Ext.P3 - FIR alleging offences punishable under Sections 55 (a) and 55(i) of the Abakri Act and Sections 468, 469, 471, 483, 420 r/w 34 of IPC .
3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55 (a) and 55(i) of the Abakri Act and Sections 468, 469, 471, 483, 420 r/w 34 of IPC before the Judicial First Class Magistrate Court-I, Kottayam. The case was committed to the Sessions Court, Kottayam, from where it was made over to the Trial Court.
4. Accused Nos. 2 to 11 faced trial. Charges were framed against them for the offences punishable under Sections 468, 471, 484, 485 r/w 34 of IPC and Sections 55 (a) and 58 of the Abkari Act . The accused pleaded not guilty to the charges and therefore, they came to be tried by the Trial Court for the aforesaid offences.
5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P18 and MOs 1 to 14 series.
6. After the closure of the prosecution evidence, the matter was heard under Section 232 of Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their evidence and adduce evidence, if any, they may have in support thereof. The Trial Court found accused Nos. 2 and 4 guilty of the offences punishable under Sections 55 (a) and 55(i) of the Abkari Act and Sections 483 & 484 of IPC and they were convicted thereunder.
7. Heard the learned counsel for the appellants/accused Nos.2 & 4 and the learned Senior Public Prosecutor.
8. The learned counsel for the appellants challenges the judgment of conviction and sentence on the following grounds:
(a) The prosecution failed to establish that the liquor allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laborotary.
(b) The arrest of accused No.4 is doubtful.
(c) The prosecution has not succeeded in establishing the ingredients of the offences punishable under Sections 483 & 484 of IPC .
9. The alleged seizure was effected on 25.10.2000.
PW13, the Investigating Officer stated that he had prepared the property list on 30.10.2000. He was not sure as to the date on which the properties including the sample were produced before the Court. While examined in cross, PW13 admitted that, the properties were produced before the Court only on 12.01.2001. He added that the properties were in his safe custody till then. The inordinate delay in the production of the properties including the sample before the Court has not been satisfactorily explained by the prosecution.
10. In Ravi v. State of Kerala [ 2011 (3) KHC 121 ], 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 be
