Alakkadan Suresh s/o Raghavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** **CRL.A.No.2838 OF 2008** **AGAINST THE JUDGMENT IN SC 241/2004 DATED 18-10-2008 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY** ## **APPELLANT/ACCUSED:** **ALAKKADAN SURESH S/O RAGHAVAN, KALLAMKUNNUMMAL VEEDU, THOLAMBRA AMSOM DESOM, THALASSERY TALUK.** **BY ADV. SRI.C.P.PEETHAMBARAN ADV.SHYNA P.A.** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.P.K.BABU, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.2838/08 **-:** 2 **:-** ## **JUDGMENT** Dated this the 23[rd] day of February, 2021 Appellant challenges the conviction and sentence imposed on him by judgment dated 18.10.2008 in S.C. No.241 of 2004 on the files of the Additional Sessions Judge, Adhoc-III, Thalassery. By the impugned judgment, the accused was found guilty for the offence under Section 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one month. 2. The prosecution case was that on 30.12.1999 at 5.15 a.m., the accused was found possessing five litres of illicit arrack and after seizure of the contraband and arrest of the accused by PW1, a crime was registered by PW4, Excise Inspector, and after investigation by PW5, final report was filed arraying the accused for having committed the offence under Sections 8(1) and 55(a) of the Abkari Act. The learned Magistrate on noticing that the case was one exclusively triable by court of sessions, committed the case for trial to the Sessions Court, Crl.Appeal No.2838/08 **-:** 3 **:-** Thalassery. 3. In order to prove the prosecution case, PW1 to PW5 were examined and Exts.P1 to Ext.P7 were marked, apart from MO1. 4. After analysing the evidence adduced in the case, learned Sessions Judge found the accused guilty and sentenced him to imprisonment and fine, as mentioned above. 5. I have heard Adv.Shyna P.A., on behalf of Adv.C.P.Peethambaran, learned counsel for the appellant as well as Sri.P.K.Babu, learned Senior Public Prosecutor. 6. Learned counsel for the appellant submitted that the prosecution had failed to prove the case beyond reasonable doubt. In support of the said submission, it was argued that though the alleged contraband was detected and seized at 5.15 a.m. on 30.12.1999, Ext.P5 reveals that the same was produced before the court only on 4.1.2000. PW4, in his evidence, has not explained this long delay of 5 days. Relying upon the decision in **Ravi v. State of Kerala** (2011 (3) KLT 353), learned counsel canvassed that possibility of tampering with the contraband cannot be ousted and in such cases benefit of doubt ought to be granted to the accused. It was further argued that the independent Crl.Appeal No.2838/08 **-:** 4 **:-** witnesses adduced by the prosecution turned hostile and other than the official witnesses, none was available to prove the prosecution case, which also creates doubt on the prosecution version. The learned counsel further submitted that it is evident from the deposition of PW4 that the label on MO1 when marked in evidence before court was seen missing, which certainly creates a doubt on the prosecution case. 7. Controverting the contentions raised, the learned Senior Public Prosecutor submitted that the delay of 5 days is not a crucial delay so as to warrant interference by this Court. The attention of this Court was invited by the learned Public Prosecutor to the deposition of PW4 wherein he had stated that the contraband was retained by him till 4.1.2000, which certainly is a sufficient explanation. He also argued that even though the independent witnesses had turned hostile, the same will not erode the sanctity of the prosecution case since the other witnesses have convincingly spoken in time with the prosecution case. The absence of a defence of any ulterior motives on the official witnesses to frame a false case against the accused was also pointed out as a factor supporting the prosecution case. It was also submitted that absence of the label on MO1 at the time of marking in evidence is Crl.Appeal No.2838/08 **-:** 5 **:-** not detrimental since the label was present when MO1 was produced in court. 8. I have considered the rival contentions and have perused the records. I have also gone through the evidence adduced. 9. It is seen that the contraband was seized on 30.12.1999 at 5.15 a.m.. However, the property list was prepared only on 31.12.1999. Curiously there is no explanation of any nature given by any of the prosecution witnesses for this delay from 30.12.1999 till 31.12.1999 in preparing the property list. It is also seen from Ext.P5 that even though the property list was prepared on 31.12.1999, the same was produced before court only on 4.1.2000. The requirement of producing the property seized, without unnecessary delay was explained by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). 10. When the statute insists upon production of the property without delay, it is essential that the same must be done within the limits of practicality and in the event of any delay occurring, the same is to be explained for the satisfaction of the court. If the delay in producing the property seized is satisfactorily explained then, the delay Crl.Appeal No.2838/08 **-:** 6 **:-** by itself may not be detrimental to the prosecution case. As mentioned in **Vikraman v. State of Kerala** (2007 (1) KLT 1010) the delay by itself cannot be regarded as wholly fatal, if it is reasonably explained. 11. In this context it may be apposite to mention that no explanation of any nature has been given by PW4 or PW5 for the delay except for a bald statement that till the property was produced in court the same was retained by PW4 himself. According to me, in the nature of the case and the evidence adduced, the statement given above by PW4 cannot be regarded as an explanation at all. 12. Assuming for a moment that the statement made by PW4 that he retained the contraband till it was produced in court is a sufficient explanation, I am of the view that even then the prosecution case has its own demerits. The label fixed on MO1, as stated by PW4, was not seen present when MO1 was marked in evidence. There was nothing to indicate that when MO1 was offered as substantive evidence in court, it was the same contraband that was seized from the accused or that the sample that was taken and sent for analysis was in fact taken from MO1. There is nothing to prove that MO1 was the contraband that was seized from the accused on 30.12.1999. This is an instance Crl.Appeal No.2838/08 **-:** 7 **:-** which creates doubt on the prosecution case. 13. Even though the independent witnesses had turned hostile to the prosecution case, that by itself is not a reason to doubt the prosecution case in its entirety, though the same may be a circumstance that can be taken into reckoning while considering the entirety of the case. 14. On an appreciation of the evidence adduced, I am of the view that the cumulative effect of the delay in producing the contraband before court, absence of a proper explanation for the said delay, absence of label on MO1 and the independent witnesses turning hostile, all put together, creates doubt on the prosecution story, thereby entitling the accused to be given the benefit of doubt. I therefore find that the accused is entitled to the benefit of doubt and is liable to be acquitted. 15. In the above circumstances, the conviction and sentence imposed on the accused in S.C. No.241 of 2004 on the files of the Additional Sessions Judge, Adhoc-III, Thalassery, is hereby set aside and the appellant is acquitted. The bail bonds, if any, executed shall stand cancelled and fine amount, if any, remitted shall be refunded Crl.Appeal No.2838/08 **-:** 8 **:-** forthwith. The appeal is allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge