B. Krishnan v. State of Kerala and S.I. of Police, Bekal Police Station

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940 ## CRL.A.No. 190 of 2006 AGAINST THE JUDGMENT IN SC 31/2003 of ADDL. SESSIONS COURT (ADHOC-I), KASARAGOD DATED 20-12-2005 ## APPELLANT/ACCUSED: B.KRISHNAN, AGED 26 YEARS, S/O.KANNAN, IRATTA, PANAKKAL, BARA VILLAGE,, KASARAGOD DISTRICT. BY ADV. SRI.M.SANTHOSHKUMAR ## RESPONDENT/RESPONDENTS: - 1 S.I. OF POLICE, BEKAL POLICE STATION, IN CR.NO.179/00. - 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT. SHEEBA KK, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON 30.10.2018 PASSED THE FOLLOWING: Crl. Appeal No. 190/2006 : 2 : ## **JUDGMENT** The appellant is the acccused in S.C. No. 31 of 2003 on the file of the Additional District & Sessions Judge (Adhoc-I), Kasaragod for an offence punishabe under Section 55(a) of the Kerala Abkari Act. 2. The case of the prosecution is that on 11.07.2000, at about 17.30 hours, the appellant/accused was found in possession of 37 packets, each containing 100 ml. of arrack, produced in the State of Karnataka, on the land near a Gulikanthara situated in Ward No. II of Udma Panchayath, in contravention of the provisions of the Abkari Act and the Rules and orders made thereunder. The accused imported the arrack in question from the State of Karnataka to the State of Kerala. 3. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C and he denied all the prosecution averments. 4. On the side prosecution, PWs 1 to 3 were examined and Exts.P1 to P5 were marked. PW1 is a Police Constable who accompanied PW3 at the time of detection of the offence. Ext.P1 is the seizure mahazar prepared by him and he is one of the attestor to Ext.P1. PW2 is the attestor in Ext.P1 seizure mahazar and he Crl. Appeal No. 190/2006 : 3 : turned hostile to the prosecution. PW3 is the S.I. of Police who detected the case. Ext.P3 is the property list. PW3 has investigated the case and filed charge sheet and Ext.P4 forwarding note before the Committal Court to send the sample for chemical analysis. Ext.P5 is the analysis report. 5. The learned Sessions Judge, after trial, as per judgment dated 20.12.2005, found the appellant guilty of the offence and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo rigorous imprisonment for one month. Highly aggrieved by the conviction and sentence passed against him, he has approached this Court. 6. The learned counsel for the appellant has argued that the Detecting Officer himself has investigated the case and filed the charge sheet and therefore, it would cause much prejudice to the accused. He has also argued that there was inordinate delay in forwarding the properties to the Committal Court. The alleged incident was on 11.07.2000; but the properties were sent to the Court on 15.07.2000. The seized properties have not been produced at the time of trial. Moreover, the accused was not arrested on the spot and the explanation given by the witnesses is highly unbelievable. One of the attestor to Ext.P1 seizure mahazar Crl. Appeal No. 190/2006 : 4 : is a Police Constable. Admittedly, there are people residing near the alleged place of occurrence. But the prosecution could not get any one of them as an attestor to Ext.P1. Further, the sample was not labelled on the spot. 7. PW3 , the Sub Inspector of Police, Bekal Police Station, has deposed before court that on 11.07.2000 around 11.700 hours, he got information that the accused was engaged in the sale of arrack near Gulikanthara situated nearby his residential house. PW1 and others parked their jeep there and proceeded to the spot on foot. When they covered a distance about 250 metres, the accused was seen near Gulikanthara with a plastic bag in his hands. There was another man near him. Seeing the police party, the accused dropped the plastic bag and ran away and therefore, he could not be intercepted by the police party. Thereafter, they have seized 37packets in the bag dropped by the accused. On verification, it was found that each of them contained 100 ml. of arrack produced in the State of Karnataka. Among them, two packets were opened and a little of their content was smelt, tasted and found that it was arrack. Four more packets were opened and the contents of three packets each were poured into two separate bottles and those bottles were sealed and labelled as samples. PW1 has prepared Ext.P1 seizure mahazar. He is one of the attestors to Ext.P1. The Crl. Appeal No. 190/2006 : 5 : other attestor is the independent witness, who has seen the accused when the police party reached at the place of occurrence. According to PW1, the accused was short and fat when the case was detected. The name and address of the accused was obtained by the independent witness who has seen the accused ran away from the spot on seeing the police party. PW2, who is the independent witness to the seizure, has deposed before court that he knew the accused as well as Gulikanthara near which the seizure in this case took place. He admitted his signature in Ext.P1 seizure mahazar; but he had deposed that he had not seen the accused running away from the spot dropping the contraband articles. He turned hostile to the prosecution. During cross examination also, he has testified before Court to that effect. 8. In this case, it is very important to note that the contraband articles were found in abandoned stage. PW3, the Detecting Officer, has deposed before court that on seeing them, the accused has abandoned the contraband articles at the place of occurrence and ran away. It is important to note that the appellant/accused has not been arrested PW3. In fact, the contraband articles were seized and samples were taken and the same was labelled with signautes of the independent witnesses, the detecting officer and PW1. There is no evidence before court to Crl. Appeal No. 190/2006 : 6 : prove that the contraband articles were seized directly from the possession of the accused. The prosecution has failed to show that they have obtained the signature of the appellant/accused in any of the papers. It is the case of the prosecution that they could not apprehend the accused at the place of occurrence. PW2, the independent witness, has totally denied the presence of the accused at the place of occurrence; but he admitted his signature on seizure mahazar. Definitely, the admission on the part of PW2 regarding the signature on Ext.P1 mahazar can be used for the purpose of corroborating the official witness. In _**Neelakandan Kunjuraman**_ _**v. Public Prosecutor**_ (1960 KLT 704), once an independent witness admits his signature in the seizure mahazar, his subsequent hostility is of no consequence. His evidence can be used for the purpose of corroborating the official witnesses. 9. It is pertinent to note that PW3, the Sub Inspector of Police, Bakel Police Station, who has detected the case has done investigation in this case. The case was detected on 11.07.2000. The FIR is marked as Ext.P2 and Ext.P3 is the property list, as per which the properties were forwarded to the Committal Court on 15.07.2002. PW3 has testified that he could not send the samples on the next day after seizure, since there emerged some law and order problems to be tackled. The court below had discarded the Crl. Appeal No. 190/2006 : 7 : argument advanced by the learned counsel for the appellant/accused that there was delay in producing the contraband articles before court and it is opined that the police is not only to conduct investigation; but they are to tackle the law and order situations also, and cited the decision in _**Reghuvir Singh and others v. State of Bihar**_ (1986 SCC (Crl. 511). 10. In the decision reported in _**Kumaran P. v. State of Kerala and another**_ [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what prevented them from producing the sample before court. In the absence of the explanation by the prosecution, the accused is entitled to the benefit of doubt. In the instant case, there is a delay of merely four days in producing the sample before court. Further, the sample bottle did not contain the signature of the accused. Along with the contraband articles, he has filed forwarding note before the Committal Court to send the samples for chemical analysis. Ext.P4 is the copy of the forwarding note. Ext.P5 analysis report would show that the samples respectively contained 29.99% and 29.72% of ethyl alcohol by volume. The witnesses were questioned and their statements were also recorded. The accused was arrested on 26.07.2000. It is also Crl. Appeal No. 190/2006 : 8 : borne out that the contraband articles involved in this case could not be produced at the time of trial. The reason was that the prosecution has filed a report to the effect that the entire properties were got damaged due to lapse of time and the entire packets were destroyed for want of proper storage place. Moreover, the packets were very thin and they are liable to break due to the slightest pressure resulting in the leak out of the arrack in them. However, the Chemical Analysis report shows that the liquid in the packet was arrack. Eventhough the contraband articles were not produced before court, the report filed by the prosecution can be accepted because those packets may have lost while it was in the custody of the Investigating Officer. There is absolutely no evidence to prove that those contraband articles were seized from the possession of the accused as the appellant/accused was not arrested by the detecting officer. In the absence of such an evidence, it is very difficult to come to the conclusion that the appellant/accused has got any connection with regard to the alleged offence. The very important and crucial aspect to be considered is that PW3 is the detecting officer as well as the Investigating Officer. The learned counsel for the appellant has placed reliance on the decision in _**Mohan Lal v. State of Punjab**_ [2018 (3) KLT 852 (SC)], in which it is held that the Detecting Officer and the Investigating Officer Crl. Appeal No. 190/2006 : 9 : cannot be one and the same and it will definitely cause prejudice to the accused and will vitiate the trial. A fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. It is also held that a fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS cases were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. 11. The prosecution must prove that a fair investigation was done related to the offences alleged to have committed by the appellant. Here the Detecting Officer as well as the Investigating Officer are one and the same and therefore, it cannot be said that a fair investigation was done in this case. In the absence of a fair investigation, there can be no fair trial. On this sole ground alone, I find that it is just and proper to allow the appeal. 12. For the reasons mentioned above, I find that the Crl. Appeal No. 190/2006 : 10 : prosecution has failed to prove the guilt of the accused under Section 55(a) of the Kerala Abkari Act and therefore, he is entitled to get acquittal. In the result, this appeal is allowed and the conviction and the sentence imposed against the accused in S.C. No. 31 of 2003 on the file of the Additional Sessions Judge (Adhoc-I), Kasaragod is hereby set aside. The appellants is set at liberty forthwith. The bail bond, if any, executed by the appellant shall stand cancelled. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No. 190/2006 : 11 :