B. Chandrasekharan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938 Crl.Rev.Pet.No. 216 of 2012 () ------------------------------- Crl.A 366/2010 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD SC 303/2008 of SUB COURT, KASARAGOD REVISION PETITIONER/REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------------------- B.CHANDRASEKHARAN AGED 43 YEARS,S/O.THYAMPANNA SHETTY,BAINADUKAVU, MADHUR VILLAGE,KASARAGOD TALUK AND DISTRICT. BY ADVS.SRI.I.V.PRAMOD SRI.B.VINOD RESPONDENT/COMPLAINANT (STATE): ------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031. BY PUBLIC PROSECUTOR, SHRI M V ANANTHAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. R. P. No. 216 of 2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of January 2017 ## O R D E R The revision petitioner was concurrently found guilty by the courts below under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 13.6.2004 at 1.30 p.m., the revision petitioner was found in possession of five litres of arrack, in contravention of the provisions of the Abkari Act. 3. Before the trial court, PW1 to PW3 were examined and Exts.P1 to P9 were marked for the prosecution. No evidence was adduced from the side of the revision petitioner. Crl.R.P.216/2012 : 2 : 4. Heard. 5. The learned counsel for the revision petitioner has argued that since the inventory was prepared by an officer who was not an authorised officer under the Abkari Act, Ext.P8(a) inventory report cannot be acted upon and consequently, the revision petitioner is entitled to benefit of doubt. It has been further argued by the learned counsel for the revision petitioner that there was inordinate and unexplained delay in conducting the investigation and filing the final report before the court and in the said circumstances also, the revision petitioner is entitled to benefit of doubt. 6. Ext.P8(a) is the inventory prepared by the Circle Inspector, Kasaragod Range. It is clearly stated in Ext.P8 Crl.R.P.216/2012 : 3 : (a) that the inventory was prepared by the Excise Inspector, Kasaragod and submitted to the Assistant Excise Commissioner, Kasaragod. S.R.O. No.671/75 provides that the Assistant Commissioners in charge of Excise Divisions are authorised officers under Sub Section (1) of Section 67B of the Abkari Act for the purpose of Section 53A within their respective jurisdiction. This court in Chandran @ Chandrashekaharan v. State [2016(5) KHC 650] held that when inventory report is prepared by an officer, who is not an authorised officer under the Abkari Act, the said report cannot be acted upon. In this case, PW1 stated that he produced the contraband before the Circle Inspector concerned. However, the Circle Inspector who prepared the inventory was not examined before the court. It is Crl.R.P.216/2012 : 4 : evident from Ext.P8(a) that the inventory was prepared by the Circle Inspector of Excise, Kasaragod Range, who was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub section (2) of section 53A of the Abkari Act. Since Ext.P8 (a) was prepared by an officer not authorised under the Abkari Act, Ext.P8(a) cannot be acted upon as the same is patently illegal. When Ext.P8(a) cannot be acted upon, the entire contraband should have been produced before the court. However, in this case, the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P8(a) inventory, which is patently illegal and consequently, the revision petitioner is entitled Crl.R.P.216/2012 : 5 : to acquittal. 7. It is also to be noted that even though the incident in this case was on 13.6.2004, the final report was filed before the court after completing the investigation only on 17.1.2008, which was after a period of 3½ years from the date of occurrence. No explanation had been given by the prosecution as to why there was delay in conducting the investigation in this case. PW3 was the Excise Range Inspector who conducted the investigation. PW3 could not state about the reason for the delay in conducting the investigation and filing the final report. The court in Krishnan H. v. State [2015(1) KHC 822] held that the inordinate delay in conducting the investigation, in the absence of explanation, is fatal to the prosecution case. In ## Crl.R.P.216/2012 : 6 : this case, there was long and unexplained delay in conducting the investigation and filing the final report before the court. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is no doubt fatal to the prosecution as held in Krishnan (supra) and consequently, the revision petitioner is entitled to benefit of doubt on that reason also. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained. In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act and the Crl.R.P.216/2012 : 7 : revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands discharged. Needless to state that if the revision petitioner had deposited any amount before the trial court pursuant to the direction of this court, the revision petitioner is entitled to reimbursement of the same from the trial court. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.25.1.2017_ _// True Copy //_ _PA to Judge_