IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

TH FRIDAY, THE 4 DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 CRL.A NO. 1613 OF 2007 AGAINST THE JUDGMENT DATED 26.07.2007 OF THE ADDITIONAL DISTRICT AND ADDITIONAL SESSION’S JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE IN SC NO.917/2004 APPELLANT/ACCUSED:

BALAKRISHNAN AGED 55 YEARS S/O.KELUKUTTY, KIZHAKKUMPADATHU HOUSE, THAZHEKODE AMSOM OF KOZHIKODE TALUK.

BY ADVS.

SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT/COMPLAINANT:

EXCISE INSPECTOR, KUNNAMANGALAM EXCISE RANGE,, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

BY ADVS.

ADV. RANJIT GEORGE – SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellant herein is the accused in S.C. No.917 of 2004 on the file of the Additional Sessions Judge, Fast Track Court (Adhoc -II), Kozhikode. The aforesaid case arises from Crime No.37/2002 of Kunnamangalam Excise Range which was registered against the appellant herein for the offence punishable under Section 8 of Abkari Act.

2. The prosecution case is that on 27.11.2002 at 12.30. p.m.

the accused was found carrying 3 litres of arrack in a can at Kuttipilakkal – Kizhakkumpadam Colony road in front of the house of one Palattukuzhi Pushpan. On the basis of the same the aforesaid crime was registered after the arrest of the appellant and seizure of contraband article. Upon completion of the investigation, final report was submitted before the Judicial First Class Magistrate Court – II, Thamarassery where the case was taken on file as C.P. No.37/2004. Upon completing the legal formalities the case was committed to Sessions Court, Kozhikode and later the same was made over to the Additional Sessions Court, Fast Track (Adhoc II) Kozhikode where it was tried as S.C. No.917/2004.

3. In support of the prosecution, PWs 1 to 5 were examined, Ext.P1 to P7 were marked and the can seized by the Excise party, was produced and marked as MO1. After closure of prosecution evidence the appellant was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied and pleaded innocence. No defence evidence was adduced. Based on the materials produced by the prosecution, the learned Sessions Judge arrived at the conclusion that the appellant is guilty of the offence punishable under Section 8 of the Akbari Act and accordingly he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with a default sentence of simple imprisonment for six months. This appeal is filed challenging the aforesaid order of conviction and sentence.

4. Heard Sri.Jacob Abraham, learned counsel appearing for the appellant, and Sri.Ranjit George, learned Public Prosecutor appearing for the State.

5. The learned counsel for the appellant contends that the prosecution miserably failed in establishing the guilt of the appellant. It is pointed out that, there were serious lapses on the part of prosecution in completing the investigation and submitting the final report within a reasonable time. It was pointed out that, even though the incident occurred and the article was seized on 27.11.2002, the final report was submitted on 24.08.2004. It was also pointed out that, the scene mahazar was prepared on 15.08.2004 which is after 9 months of the incident and the said scene mahazar was prepared through the officers who were not parties to the Excise team which detected the offence. The officers who prepared Ext.P7 scene Mahazar were also not examined. In addition to the above, it was also submitted that the investigation officer was also not examined. It is further pointed out that, as per Ext.P4 forwarding note, the same is seen to have been prepared by the Excise Inspector, Ferok who was in charge of Excise Inspector, Kunnamangalam. However, in the evidence of PW5 he has stated that he was