Appukkuttan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937 CRL.A.No. 250 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 79/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-I, THODUPUZHA CP 69/2002 of J.F.C.M,NEDUMKANDOM APPELLANT/ACCUSED: ------------ APPUKKUTTAN, S/O.KOCHUNARAYANAN, KANDATHIL VEEDU, PUSHPAKANDAM KARA, PARATHODE VILLAGE. BY ADVS. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR ## RESPONDENT/COMPLAINANT: -------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SMT. LISHA.M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 250 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thodupuzha, for the offences under Sections 55(a) & (g) and 8(1) & (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for one month. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 250/2006 2 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Nedumkandam Police Station, received reliable information over phone at 11.15 p.m. on 25.3.2002 that the appellant was distilling arrack in his house at Pushpakandam in Parathodu Village. Therefore, after sending a search memo to the court, PW4 and his party left for that place and reached there at about 00.15 a.m. on 26.3.2002. On searching his house, it was found that the appellant was distilling arrack using the required vessels and utensils in the kitchen of his house. 600 ml. of arrack so distilled was seen in a 750 ml. bottle. PW4 has taken two samples of 100 ml. each in two 100 ml. bottles from the bulk of arrack contained in the bottle. The samples as well as the bottle containing arrack were sealed. These items as well as the vessels and utensils used for distilling arrack were seized by PW4 under Ext.P1 Search List in the presence of witnesses. The appellant was arrested then and there. Thereafter, PW4 and his party CRA 250/2006 3 reached Nedumkandam Police Station with the appellant, properties including samples and the records. PW4 registered Crime No.79 of 2002 of that Police Station in respect of the occurrence. Ext.P5 is the F.I.R. thus drawn by PW4. He has produced the appellant, properties including samples and the records before the Judicial First Class Magistrate's Court, Nedumkandam. Ext.P7 is the List of Property and Ext.P8 is a copy of the Forwarding Note. PW4 conducted investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was made over to the Additional Sessions Court (Ad hoc)-I, Thodupuzha. The court below framed a charge against the CRA 250/2006 4 appellant alleging the offences under Sections 55(a) & (g) and 8(1) & (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P9 and MOs. 1 to 6 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has examined DW1 and marked Ext.D1. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(a) & (g) and 8(1) & (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that a search was conducted in the house of the appellant at about 00.15 a.m. on 26.3.2002 and seized arrack as well as vessels and utensils used for distilling arrack. The properties including the samples were CRA 250/2006 5 produced before the court on 9.5.2002. This is quite evident from the deposition of PW4 as well as from Ext.P7 List of Property. Why this long delay has occurred in producing the properties before the court? PW4 attempted to explain the delay so occurred by sating that he had caused the production of the properties before the court on 26.3.2002 itself. But, they were not received by the court for the reason that inspection of the court was going on then. Another reason stated by PW4 for the delay in producing the properties before the court was that he was busy with the duties. During the cross examination, PW4 stated that a Constable has taken the properties for producing before the court and he only told him about the inspection of the court and the returning of properties on 26.3.2002. He further stated that he was busy with the duties during the period in connection with the agitations going on. But, he was not sure as to the nature of the agitations. He himself admitted that the appellant and some CRA 250/2006 6 documents were produced before the court on 26.3.2002 itself. Then, what was the special reason for him not to produce the contraband and other properties before the court on 26.3.2002? The explanations offered by PW4 for the inordinate delay that occurred in producing the properties are not at all appealing or acceptable especially in view of the fact that the distance between the court and the police station and the distance between the residence of the learned Magistrate and the police station is only 300 metres even according to PW4. Therefore, the explanations so offered by PW4 are rejected. A Division Bench of this Court in **Ravi v. State of Kerala (2011(3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the properties. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013(3)KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. The explanation means not an explanation CRA 250/2006 7 as given by PW4. Such an explanation is not at all a legally acceptable or valid explanation. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW4 did not tell the court as to what were the nature of duties that prevented him from producing the contraband items till 9.5.2002. A bald statement that he was busy with the duties cannot be accepted as a satisfactory explanation for such an inordinate delay that occurred in producing the properties before the court. The explanation contemplated by the ruling of this Court in **Ravi v. State of Kerala (supra)** is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW4 is not proper and satisfactory. Therefore, in this case, it can be found that the delay occurred in producing the properties including the contraband was not properly explained by the prosecution. This unexplained inordinate delay that CRA 250/2006 8 occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 6. For the foregoing reasons, the impugned conviction and sentence passed against the appellant by the court below are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 7. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offences under Sections 55(a) & (g) and 8(1) & (2) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 250/2006 9