IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 1929 of 2003() ---------------------------------- SC.280/2000 of ADDL. SESSIONS COURT (ADHOC)-II, THALASSERY ............................................................................. APPELLANT(S): ACCUSED: ------------------------------------- P. SUDHAKARAN, S/O. KUNHIRAMAN, 42 YEARS, PUTHALATH HOUSE, AMBILAD DESOM, KUTHUPARAMBA AMSOM, THALASSERY TALUK. BY ADVS. SRI.P.P.RAMACHANDRAN SRI.SHEJI P.ABRAHAM RESPONDENT(S): COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1929 OF 2003 -------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C. 280/00 of the Addl.Sessions Judge (Ad hoc – II) Thalassery. The accused was found guilty u/s.55 (a) of the Abkari Act and was sentenced to undergo 3 years imprisonment and to pay a fine of Rs.1 lakh. It is against that decision the present appeal is filed by the accused. It is the case of the prosecution that on 6.9.1997 at about 5.30 a.m., the accused was found transporting 96 bottles of Doctors Reserve No.I Brandy each having a capacity of 180 ml., kept in four cardboard boxes in an autorikshaw, bearing Regn.No.KRC 6032. I am not dwelling deep into the materials because the confusion is created in the mind of this court regarding the production of the thondi articles before the court. The thondi list which is available would show that it was produced before CRL.A.No.1929 OF 2003 2 the court on 18.12.1997 and there was a direction to entrust back to the officials for safe custody. The said thondi list as such, is seen prepared only on 16.12.1997. The seizure of the thondi articles is admittedly done on 6.9.1997 by the prosecution. If it is seized on 6.9.1997 and is produced only on 18.12.1997, there is considerable delay which may go a long way to hold against the prosecution. So under such circumstances, the prosecution attempted to explain it by stating that, along with the remand report itself, it was produced and was given back by the court to the Excise officials. There can not be any oral directions in judicial matters but it is true that there is a statement in the remand report that the list of thondi articles and thondi articles are produced along with the accused. But we do not find any corresponding endorsement or entry available, in the documents available before me to establish that factor. It is a very serious matter that has to be looked into because it may decide the fate of the case. So I feel in the light of this CRL.A.No.1929 OF 2003 3 confusing state of affairs, an opportunity should be given to the prosecution to establish that they had really produced the thondi articles on the date of remand report itself and it was given back to them. If it is not proved, then necessarily the court is bound to consider the inordinate delay of more than 3 months in producing the thondi articles before the court. It may weigh in favour of the accused. The list of thondi articles contains the sealed bottles which had been sent for chemical examination and it is on the basis of that report the accused is convicted in the case. Similarly, it is also raised that if at all there is any offence, it is not u/s.55(a), but it will be u/s.63 of the Abkari Act, that may apply and let it be also considered by the court at the time of hearing the matter. Therefore the conviction and sentence passed by the court below is set aside and the matter is remitted back to the court below with a direction to consider the matter afresh, by giving an opportunity to the prosecution as well as to the defence to prove their respective contentions and then decide the matter in CRL.A.No.1929 OF 2003 4 accordance with law. The parties are directed to appear before the court below on 28.07.2009. M.N.KRISHNAN, JUDGE ami.