Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936** ## **Crl.Rev.Pet.No. 1335 of 2006 ( )** **--------------------------------CRL.A. NO.12/2002 OF I ADDITIONAL SESSIONS COURT, KOLLAM. CC. NO.824/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM. .........** **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **ASOKAN, S/O.SHANMUGHAN, ALAMCHERUVIL VEEDU, KODAVILA MURI, EAST KALLADA VILLAGE.** **BY ADV. SRI.SHABU SREEDHARAN.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, EAST KALLADA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SR. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKKEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **P.UBAID, J. ~~~~~~~~~~ Crl.R.P No.1335 of 2006 ~~~~~~~~~~~ Dated this the 31[st] March, 2014** ## **O R D E R** The revision petitioner herein challenges the legality and propriety of the sentence against him under Section 55 (a) of the Kerala Abkari Act (hereinafter referred to as 'the Act' for short) punishable with imprisonment which may extend to two years and a minimum fine of 25,000/- as it₹ stood before the amendment. The alleged incident happened on 19.12.1996. The prosecution case is that at about 11.30 a.m on 19.12.1996 the revision petitioner was found possessing five litres of arrack contained in a plastic Can of 10 litres capacity. The offence was detected by the Sub Inspector of Police, East Kallada. The revision petitioner was caught by the Sub Inspector when he tried to run off and escape on seeing the police party. When the Sub Inspector seized and examined the plastic Can, it was found containing some liquid. The Sub Inspector identified it as arrack by taste and odour. The revision petitioner was arrested on the spot and the quantity of arrack was seized **Crl.R.P No.1335 of 2006** **2** as per mahazar. On the basis of the seizure, the Sub Inspector registered a crime against the revision petitioner, and he himself investigated the case and submitted final report in court. 2. The revision petitioner entered appearance before the learned Judicial First Class Magistrate-I, Kollam and pleaded not guilty when the substance of accusation was read over and explained. The prosecution examined three witnesses in the trial court including the Detecting Officer, and also marked Exts.P1 to P4. The plastic can seized from the hands of the accused was marked as MO1 during trial. By way of defence evidence, two witnesses were examined on the side of the accused. 3. On an appreciation of the evidence, the learned Magistrate found the revision petitioner guilty under Section 55(a) of the Act. On conviction thereunder, he was sentenced to undergo simple imprisonment for three months, and also to pay the minimum fine of 25,000/-.₹ Aggrieved by the conviction and sentence, he approached the Court of Session, Kollam with Crl.A No.12 of 2002. In **Crl.R.P No.1335 of 2006** **3** appeal, the First Additional Sessions Judge, Kollam concurred with the findings of the trial court, and confirmed the conviction and sentence. 4. The legality and propriety of the conviction and sentence is challenged by the revision petitioner on two grounds. One is that, the investigation was made by the Sub Inspector,who detected the offence and charge was also laid by him. The second legal aspect is that the prosecution has not explained the inordinate delay in producing the property in court. 5. Of course, PW3 examined as the Detecting Officer has given evidence regarding the arrest of the accused and seizure of MO1 plastic can containing some liquid, which he identified as arrack. He has also given evidence regarding the sampling process on the spot. He says that 350 ml was taken in a separate bottle as sample, it was well sealed, and was produced in court. The said sample was sent for chemical analysis, and Ext.P4 chemical report would reveal that the sample contained Ethyl Alcohol. PW1 examined as independent witness by the prosecution, turned hostile as **Crl.R.P No.1335 of 2006** **4** usual. However, he admitted his signature in Ext.P1 mahazar. PW2 is a Police Constable, who had been in the police party led by the Sub Inspector. He has also given evidence corroborating the evidence given by the Sub Inspector. 6. On a perusal of the case records, I find that during investigation, the Sub Inspector, who detected the offence had interrogated some witnesses including PW2. Ext.P1 mahazar shows that two independent witnesses had signed in the mahazar as detection witnesses. Only one of them was examined, but he turned hostile. There is no explanation why the other witnesses was not examined when the first man turned hostile. 7. The detection was on 19.12.1996, but the records will reveal that the property was produced in Court only on 24.2.1997. The Detecting Officer, examined as PW3 has no explanation regarding the inordinate delay in producing the property in court. He has not given evidence that the property was in his safe custody, and his evidence will not in any manner rule out the possibility of tampering **Crl.R.P No.1335 of 2006** **5** with the property or the sample produced in court. The revision petitioner relies on a decision of this Court in **Ramankutty v. Excise Inspector [2013 (3)( KHC 308].** In the said reported case, the detection was made on 24.5.1997 and the property was produced in Court on 26.5.1997. Even the benefit of doubt regarding the unexplained delay of 2 days was given in the said case to the accused by this Court, and in revision, the accused was acquitted. 8. Here, the delay is not of one or two days or even one or two weeks. Nobody explains why production of property in Court was delayed. It is not known in whose custody, the property was during the said period of about three months . PW3 does not say that the property was in his custody. The prosecution has no explanation who had custody of the property, or that it was in the possession of somebody who could not have in any manner tampered with the property. As found by this Court in Ramankutty's case, the benefit of doubtful delay will have to be given to the revision petitioner herein also. **Crl.R.P No.1335 of 2006** **6** 9. The final report submitted by the Police shows that the Detecting Officer had interrogated two witnesses as independent witnesses besides the mahazar witnesses. Nonexamination of the other witnesses may not be of much consequence on facts, but, when it comes to the legal question regarding the investigation conducted by the Detecting Officer himself, an area of prejudice can be seen by this Court. 10. In **Kader v. State of Kerala [2001 (2) KLT 407],** this Court held that there is nothing wrong or illegal in the Detecting Officer himself conducting investigation in cases where the Detecting Officer had no specific or important role during investigation, to collect any further material for the prosecution. In such cases, prejudice cannot be pleaded by the accused because evidence will be mainly on the question of detection. But in this case, the position is different. After detection, the Detecting Officer in this case proceeded to conduct investigation. The case records will show that some material witnesses were interrogated by him. In such a case where material **Crl.R.P No.1335 of 2006** **7** witnesses were interrogated by the Investigating Officer, and when some of those witnesses are not examined by the prosecution, an area of prejudice can be seen by the Court. There is no explanation why the prosecution did not examine the other important witnesses. PW3 himself conducted investigation involving interrogation of material witnesses. In the above circumstances, I find that the revision petitioner in this case is really prejudiced by the investigation conducted by the Detecting Officer. 11. Of course, on facts, there may not be reason for interference but, on the legal question raised by the revision petitioner, I find some scope for interference as discussed above. I find that the investigation conducted by the Detecting Officer, and also failure on the part of the prosecution to produce the properties promptly in Court caused serious prejudice to the accused. The benefit of these doubts will have to be given to the accused in the above circumstances, and he can be acquitted in revision. In the result, this revision petition is allowed. The conviction and sentence against the revision petitioner in **8** ## **Crl.R.P No.1335 of 2006** C.C No. 824 of 1998 of the Judicial First Class Magistrate Court-I, Kollam will stand set aside on the finding that he is not guilty in view of the benefit of doubt given to him in revision. Accordingly, the revision petitioner will stand released from prosecution on acquittal and the bail bond executed by him will stand discharged. **Sd/P.UBAID JUDGE** ma **/True copy/** ## **Crl.R.P No.1335 of 2006** **9** ## **Crl.R.P No.1335 of 2006** **10**