JUDGMENT

Dated this the 17th day of March 2021 The accused in SC.No.94/2005 on the file of the Court of Additional Sessions Judge (Adhoc -I), Ernakulam has filed this appeal aggrieved by the judgment dated 10.05.2006 whereby the appellant was found guilty of offences under section 58 of the Abkari Act and has been sentenced to undergo rigorous imprisonment for six months and to pay of fine of Rs. 1 lakh and in default of payment of fine, to undergo simple imprisonment for a further period of six months.

2. The case of the prosecution is that on 04.10.2002, when PW1 the Excise Inspector of Aluva Circle Office and PW2 the Preventive Officer of the said office were on patrol duty, they found the accused carrying a plastic can in his left hand. According to the prosecution, the accused was intercepted and on examining the can, it was found that it contained 2 litres of arrack. It is stated that they have also found a 10 litre can which contained 9 litres of arrack. Before the Court below, the prosecution examined PW1 to PW7 and Exts.P1 to P12 were marked. On the basis of the evidence on record, the Court below found the accused guilty of offence under Section 58 of the Abkari Act and imposed the sentence referred above.

3. Heard.

4. The main contention put forward by the counsel for the appellant is that, there is considerable delay in producing the contraband articles before the Court. It is contended that even though the seizure is said to be on 04.10.2002, the articles were produced before the Court only on 19.10.2002 as can be seen from Ext.P8 property list. I find considerable force in the contention put forwarded by the appellant. Two documents have been produced as property list. Ext.P7 which has been marked as property list merely shows that the seal of the Court has been affixed on 05.10.2002. There is no other endorsement regarding the receipt of the 'thondy' articles by the Court and inclusion of the details in the 'thondy' register. Ext.P8 is also a 'thondy' list with the very same details but it would show that the same was received by the Magistrate's Court only on 19.10.2002. There is an endorsement by the Court that the 'thondy' has received and necessary entries have been made as T395/02. Even though, PW5 when examined before the Court had stated that the 'thondy' articles were produced before the Court on 05.10.2002 and the same were returned to him for safe custody, there is no corresponding entries seen any where in Ext.P7 to show that the articles had been returned. The presence of the seal showing a date 5.10.2002 is not sufficient to prove that the articles as such were produced on that date. It can be of help only to prove that the list was produced on that date. At the same time, Ext.P3 specifically says that the articles were received and necessary entries have been made in the 'thondy' register. In the above circumstances, Ext.P8 alone can be treated as the property list and the proof regarding production of the 'thondy' articles before the Court. This Court has held in several decisions that delay in producing the 'thondy' articles before the court is fatal for the prosecution. In Ravi V. State of Kerala [2018 (5) KHC 352], this Court held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view have been expressed by this Court in Ramankutty V. Excise Inspector [2013 (3) KHC 308] and Balachandran V.

State of Kerala [2020 (3) KHC 697].

5. Further, it is seen from Ext.P9 forwarding note that it does not bear any date. The name of the Excise Guard through whom the materials have to be forwarded for chemical examination is not stated. Even though, the Judicial First Class Magistrate has signed the document, no date is written along with the signature to show the date on which the learned Magistrate had endorsed. The space allotted for the impression for the specimen seal used for sealing the sample has been left blank. The seal of the Court bears the date '18.11.2002'