Balakrishna Rai v. The Station House Officer, Badiadka Police Station and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** **CRL.A.No. 324 of 2011 (A)** **-------------------------AGAINST THE JUDGMENT IN SC 575/2005 of ADDL. DISTRICT COURT (ADHOCIII), KASARAGODE DATED 19-02-2011** **APPELLANT/ACCUSED:** **------------------** **BALAKRISHNA RAI, S/o.THIAMPANNA RAI SOORAMBAYAL HOUSE, SWARGA, PANAJE VILLAGE KASARAGODE.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------** **1. THE STATION HOUSE OFFICER BADIADKA POLICE STATION.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR: SMT. M.G.LISHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2015, THE COURT ON 27.01.2016 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ## ================= **Crl.A.No.324 of 2011** ================= Dated this the 27[th] day of January, 2016 ## **JUDGMENT** The sole accused who was convicted by the Sessions Judge (Adhoc-III), Kasaragode in S.C.No.575 of 2005 on an alleged possession of arrack is the petitioner herein. 2. The allegation of the prosecution is that on 21.11.2003 at about 8 p.m, the Sub Inspector of Badiadka Police Station got a secret information that arrack was being transported in a can. He intercepted the vehicle at the spot, but the vehicle without stopping, proceeded and was chased by the Sub Inspector in a jeep. After running for about 2 kms, the vehicle was stopped and accused who was driving the vehicle ran out. He was intercepted. In the course of the attempt to apprehend, the Sub Inspector is alleged to have sustained bodily injury. However, accused was caught hold of. The vehicle was found containing 2 sacks of 500 ml sachet of 100ml arrack each. Sample was taken in two bottles at 300 ml each. After the initial formalities, crime was registered and accused was remanded. After investigation, he faced trial before the Sessions Court. On the side of the prosecution, evidence was Crl.A.324/11 2 let in in the form of oral testimony of PWs1 to 8 and documentary evidence in the form of Exts.P1 to P11(a). The court below, on an evaluation of the entire materials, concluded that the accused had committed the offence punishable under the Abkari Act, convicted and sentenced him to suffer rigorous imprisonment for 4½ years under Section 8(2) of the Kerala Abkari Act. Though he was charged under Section 333 IPC, he was acquitted of that offence. This is challenged by the accused in this appeal. 3. Heard both sides and examined the records. 4. The prosecution is relying on the oral testimony of PW2, detecting officer and PW3, police constable attached to the same Police Station. Though, their versions were sought to be corroborated by oral testimony of PW6 independent witness, he turned hostile and did not support the prosecution case. He admitted his signature in Ext.P2 seizure mahazar and Ext.P6 arrest memo. However, he claimed that he had signed the above document at his office. 5. PW2 in his evidence deposed that while he was in the Police Station, he got a secret information regarding a vehicle transporting arrack. He proceeded in his jeep. The jeep was Crl.A.324/11 3 stopped at a specified place and from there, he proceeded in a private hired jeep. At the spot, he waited and when the car came, he intercepted. It was stated that the vehicle did not stop and sped away. PW2 chased him and caught him after some resistance. He was arrested after the initial processing and sampling. According to PW2, six packets were taken out and samples were collected from it. According to him, place of incident was Kollamajal. The mahazar was prepared by another police constable and after completing the formalities at about 9 a.m, they left the place. This version was generally corroborated by the oral testimony of PW3. 6. The presence of the accused in the car is sought to be established by the above witness along with the ownership documents. This was essentially to establish that the accused was in the car and was intercepted at the spot. PW2 deposed that the car belonged to the accused. PW3 also reported that accused was driving the vehicle. PW5 is the Investigating Officer who also deposed that accused was the owner of the vehicle. CW1 was an officer of RTO office, who produced Exts.C1 and particulars of the RC ownership. The evidence of PWs.2, 3, 5 and Ext.C1 establish that the vehicle was owned by the accused. Crl.A.324/11 4 7. The samples were produced in Court along with list of property. By Ext.P9 forwarding note, the samples were forwarded for chemical analysis. Ext.P4 is the report relating to the chemical analysis. It shows that it contained 27.99% and 30.92% Ethyl Alcohol. Hence, it is established that the sample that reached the chemical analysis lab was arrack. 8. Learned counsel for the petitioner contended that the material objects were not produced before the court below. It was contended that that was fatal and the benefit of the decision of the Honourable Court in **Damodaran C. v. Station House Officer & Others (2007(4) KHC 936)** should be given to the accused. It was contended that the material object was a link evidence to establish the connection of the accused with the crime and in the absence of it, a conclusion could not have been possible. It is pertinent to note that Ext.P8 is the property list by which the samples and the balance contraband articles were produced in Court. Thereafter, Ext.P10 mahazar was prepared and submitted to the concerned authorities for destruction. Subsequently, it appears that it was destroyed and Ext.P11 photographs and Ext.P11(a) negatives of the photographs were pressed into service. Crl.A.324/11 5 These show that in compliance of the provisions of the Abkari Act, mahazar was prepared and the articles were duly destroyed. Hence, the contention that non-production of contraband articles in Court would render the prosecution case bad is not legally sustainable and the decision cited above has no application to the facts of this case. 9. Learned counsel for the petitioner contended that there was delay in producing the contraband articles before the Court. According to him, this casts serious doubt on the prosecution case and would render the prosecution bad. It is pertinent to note that the incident happened on 21.11.2003. Thereafter, Ext.P1 FIR reached the Court on 22.11.2003. The property list reached the Court on 24.11.2003. The seized articles were returned on 26.11.2003 by the endorsement dated 26.11.2003. Evidently, the contraband articles reached the Court only after three days. PW8, Investigating Officer has stated that he had forwarded the contraband articles to the Court. It is evident that not only there was three days delay in sending the articles to the Court but, there was a change of hands also. There is absolutely no evidence as to who was the person in custody during the interregnum. This Court Crl.A.324/11 6 in **Sivadasan v. State of Kerala 2007(3) KLJ 328)** had held that when there was no evidence to show that the contraband and the sample were kept in safe custody till the accused was produced before the Court, the chance of substitution was not ruled out by proving the evidence before the Court that the material objects were in safe custody would render the entire case doubtful. Subsequently, in **Ravi v. State of Kerala (2011(3) KLT 353)** it was held that even the officers are bound to produce contraband forthwith, that does not mean that they can produce it leisurely. Even a single days unexplained delay would render the prosecution case doubtful. Evidently, the benefit of this should go to the accused since the prosecution is essentially relying on the oral testimony of PWs.1 and 3, the official witnesses alone. 10. It has come out in evidence that the detection was conducted by PW2, the SI of Badiaduka Police Station. Thereafter, the investigation was conducted by PW5 the ASI of Kasaragod Police Station. He deposed that he was authorized to investigate. He has not produced any document to prove that he was authorized or whether, he was authorized by any person. It appears from his evidence that he had recorded the statement of Crl.A.324/11 7 all the witnesses, went to the spot and prepared the mahazar. He has also produced the accused in Court. It evidently shows that substantial part of investigation was carried on by PW8. In the absence of anything to show that he was authorized, learned counsel for the petitioner contended that the principle in the decision in **Krishnan H v. State (2015(1) KHC 822),** with respect to an investigation conducted by an unauthorized excise officer beyond the jurisdiction, would equally apply in the case of a police officer also. This legal position is fortified by the decisions of this Court in **Saji @ Kochumon v. State of Kerala[2010(3)KLT 471]** and the legal principles laid down in **Hashim v. Assistant Sub Inspector [2014(2) KLT 364]** and in **Haridas v. State of Kerala [2015(1) KLT 958)** 11. It was also contended that the prosecution has a case that the accused was chased to a long distance. Even according to the prosecution, the vehicle was not the office vehicle. It appeared to be a hired vehicle. There was no evidence to show that the vehicle was taken on rent. Evidently the records would not show that the officer had gone to the spot. The driver of the vehicle was also not examined to show the truth of such a claim of the Crl.A.324/11 8 prosecution. Further, it is pertinent to note that PW3 who was claimed to be a crucial witness was not a witness to Ext.P2 seizure mahazar. 12. Having regard to these facts, it appears that it is not safe to sustain the conviction on the basis of this doubtful evidence. Hence, petitioner is entitled for the benefit of doubt and is liable to be acquitted. In the result, the appeal is allowed. The conviction is set aside and the accused stands acquitted. The bail bond executed by him shall stand discharged. Sd/- **SUNIL THOMAS Judge** Sbna/25/1/16 True Copy P A to Judge