IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2721 of 2007()
1. VARGHESE, S/O PAILY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.A.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :05/09/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.2721 of 2007
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Dated this the 5th day of September 2007
O R D E R
The petitioner is the second accused in a prosecution under
Section 55(a) of the Abkari Act. Investigation was completed and
the final report was filed by the investigating officer. The trial
before the learned Sessions Judge has commenced also. At that
stage, the Prosecutor made a request that powers under Section
311 Cr.P.C may be invoked and ten bottles each from MO1
series, MO2 series, MO3 series and MO4 series may be sent for
chemical analysis. It was submitted that in the light of the
subsequent decision in Krishnankutty v. State of Kerala 2005(3)
KLT 568, it had become necessary for the prosecution to make
such a request. The learned Sessions Judge, by the impugned
order (a copy of which is produced as Anenxure A2), granted the
said request. The petitioner claims to be aggrieved by Annexure
A2 order.
2. What is the grievance? The learned counsel for the
petitioner submits that the court was only helping the
Crl.M.C.No.2721/07 2
prosecution to fill up the lacuna and plug the gaps in the
prosecution case. By doing so, the learned Sessions Judge has
deprived the petitioner of the right and opportunity to take up a
defence in the light of Krishnankutty v. State of Kerala 2005(3)
KLT 568. This procedure followed by the learned Sessions Judge
is incorrect and does warrant interference. The impugned order
may be set aside, it is prayed.
3. I have been taken through the impugned order. The
learned Sessions Judge has adverted to all the relevant aspects.
The learned Sessions Judge has taken note of the provisions of
Section 311 Cr.P.C and Section 165 of the Evidence Act.
Acquittal of the innocent and the conviction of the guilty are the
two inseparable duties of a criminal court. The necessity of one
is not to be squandered at the alter of the other. The learned
Sessions Judge has rightly noted that the investigator cannot be
found fault with for not making such a request earlier as the
requirement came to light only in the light of the said decision in
Krishnankutty v. State of Kerala 2005(3)KLT 568. There was
absolutely no attempt to fill up the lacuna or plug the gaps in the
prosecution case. Interests of truth and justice certainly
Crl.M.C.No.2721/07 3
demanded that a proper analysis of the contraband article was
conducted and relevant data was made available before the trial
court. The learned Sessions Judge, in passing the impugned
order, has not committed any error. At any rate, no failure or
miscarriage of justice can be said to have resulted by the
impugned order. The learned Sessions Judge has ample powers
under Section 311 Cr.P.C and 165 Evidence Act to justify the
passing of the impugned order.
4. This Criminal Miscellaneous Case is in these
circumstances dismissed.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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Crl.M.C.No.2721/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007
