Balakrishnan v. State

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 CRL.A NO. 1613 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 26.07.2007 OF THE ADDITIONAL DISTRICT AND ADDITIONAL SESSION’S JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE IN SC NO.917/2004 ``` ## **`APPELLANT/ACCUSED:`** ``` BALAKRISHNAN AGED 55 YEARS S/O.KELUKUTTY, KIZHAKKUMPADATHU HOUSE, THAZHEKODE AMSOM OF KOZHIKODE TALUK. ``` ``` BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` EXCISE INSPECTOR, KUNNAMANGALAM EXCISE RANGE,, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ``` ``` BY ADVS. ``` ``` ADV. RANJIT GEORGE – SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1613 OF 2007 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant herein is the accused in S.C. No.917 of 2004 on the file of the Additional Sessions Judge, Fast Track Court (Adhoc -II), Kozhikode. The aforesaid case arises from Crime No.37/2002 of Kunnamangalam Excise Range which was registered against the appellant herein for the offence punishable under Section 8 of Abkari Act. 2. The prosecution case is that on 27.11.2002 at 12.30. p.m. the accused was found carrying 3 litres of arrack in a can at Kuttipilakkal – Kizhakkumpadam Colony road in front of the house of one Palattukuzhi Pushpan. On the basis of the same the aforesaid crime was registered after the arrest of the appellant and seizure of contraband article. Upon completion of the investigation, final report was submitted before the Judicial First Class Magistrate Court – II, Thamarassery where the case was taken on file as C.P. No.37/2004. Upon completing the legal formalities the case was committed to Sessions Court, Kozhikode and later the same was made over to the Additional Sessions Court, Fast Track (Adhoc II) Kozhikode where it ``` CRL.A NO. 1613 OF 2007 ``` ``` 3 ``` was tried as S.C. No.917/2004. 3. In support of the prosecution, PWs 1 to 5 were examined, Ext.P1 to P7 were marked and the can seized by the Excise party, was produced and marked as MO1. After closure of prosecution evidence the appellant was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied and pleaded innocence. No defence evidence was adduced. Based on the materials produced by the prosecution, the learned Sessions Judge arrived at the conclusion that the appellant is guilty of the offence punishable under Section 8 of the Akbari Act and accordingly he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with a default sentence of simple imprisonment for six months. This appeal is filed challenging the aforesaid order of conviction and sentence. 4. Heard Sri.Jacob Abraham, learned counsel appearing for the appellant, and Sri.Ranjit George, learned Public Prosecutor appearing for the State. 5. The learned counsel for the appellant contends that the ``` CRL.A NO. 1613 OF 2007 ``` ``` 4 ``` prosecution miserably failed in establishing the guilt of the appellant. It is pointed out that, there were serious lapses on the part of prosecution in completing the investigation and submitting the final report within a reasonable time. It was pointed out that, even though the incident occurred and the article was seized on 27.11.2002, the final report was submitted on 24.08.2004. It was also pointed out that, the scene mahazar was prepared on 15.08.2004 which is after 9 months of the incident and the said scene mahazar was prepared through the officers who were not parties to the Excise team which detected the offence. The officers who prepared Ext.P7 scene Mahazar were also not examined. In addition to the above, it was also submitted that the investigation officer was also not examined. It is further pointed out that, as per Ext.P4 forwarding note, the same is seen to have been prepared by the Excise Inspector, Ferok who was in charge of Excise Inspector, Kunnamangalam. However, in the evidence of PW5 he has stated that he was the Preventive Officer, Kunnamangalam at the relevant time and in charge of the Excise Inspector, Kunnamangalam. The learned counsel also pointed out that prejudice is caused to him, as ``` CRL.A NO. 1613 OF 2007 ``` ``` 5 ``` there was huge delay in completing the investigation and since the investigating officer was not examined by the prosecution he was deprived of the opportunity to cross examine him as to the reasons for such delay. In such circumstances, the learned counsel for the appellant seeks for interference in the finding of conviction entered by the Sessions Court. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. According to him materials available on record are sufficient to arrive at the conclusion as to the guilt of the appellant. In such circumstances, no interference in the findings entered into by the Sessions Court is warranted, contends the learned Public Prosecutor. 7. The question that arises is whether the materials placed on record justify the finding of conviction entered into by the Sessions Court. PWs 1 and 2 are the Preventive Officer and Excise Guard respectively who were parties to the inspection team which detected the offence. The evidence of PW1 is to the effect that, when he was on patrol duty at 12.30 p.m. on 27.11.2002, he saw the accused coming ``` CRL.A NO. 1613 OF 2007 ``` ``` 6 ``` with a can through the road. Upon examination of the contents of the said can, they could realize that the liquid therein was arrack and the quantity was found to be 3 litres. Immediately, the appellant was apprehended, and the article was seized. Out of the liquid found in the can, they have taken sample of 180 ml. in a sample bottle and the can as well as the bottle were sealed with label containing signature of PW1, the accused and the witnesses. 8. PW2 is the Excise Guard who accompanied PW1 and he also deposed in tune with the evidence of PW1. PW3 and PW4 are the independent witnesses and the attesters of Ext.P1 seizure mahazar. Both of them turned hostile and they even denied their signatures in Ext.P1. PW5 is the Preventive Officer who has registered the crime. According to him he has produced the contraband article before the court on the very same day. Forwarding note was also prepared by him. 9. One of the contentions put forward by the learned counsel for the appellant is that there are absolutely no materials produced by the prosecution to substantiate that the articles allegedly seized from the possession of the appellant were submitted before the court on the ``` CRL.A NO. 1613 OF 2007 ``` ``` 7 ``` very same day. It is shown that the property list which is the crucial document indicating the production of the contraband article before the court is not seen marked. In the absence of marking of property list, it cannot be concluded that the article was produced before the court on the very same day as claimed by PW5. In **Babu v. State of Kerala [2020 ICO 5178]** , this Court has considered this question, and it was held that in the absence of marking of the property list, the court cannot come to the conclusion that the sample which was allegedly collected from the possession of the accused was produced before the court in a tamper proof condition. In this case as the property list is not seen marked, there is no evidence indicating production of the said article in a tamper proof condition and this is a serious lacuna on the part of the prosecution. 10. Another contention of the learned counsel for the appellant is regarding to non examination of the investigating officer. The aforesaid aspect is of very crucial importance in this case particularly because of the reason that, there is a huge delay in submitting the final report. As mentioned above, even though the crime was registered on ``` CRL.A NO. 1613 OF 2007 ``` ``` 8 ``` 27.11.2002, the final report is submitted only on 24.08.2004 which is after about twenty two months. Yet another aspect is that, the scene mahazar itself was prepared on 15.08.2004 which is after 9 months of the incident. In the scene mahazar, presence of any of the officers who were parties to the inspection team is also not seen mentioned. In the absence of presence of the said persons, identification of the spot itself is a serious concern. In such circumstances, the non examination of the investigating officer is very crucial. The appellant was denied a fair opportunity to cross-examine the investigating officer as to the delay caused in submitting the final report and also the matters relating to the preparation of the scene mahazar. In such circumstances, it is a serious lacuna on the part of the prosecution as the delay in submitting the final report coupled with the non examination of the investigating officer has caused serious prejudice to the appellant herein. Another contention of the learned counsel for the appellant is regarding discrepancies found in the forwarding note. Ext.P4 is the forwarding note and it is evident from the said document that it was prepared by Excise Inspector, Ferok who was in charge of Excise Inspector, Kunnamangalam. However, ``` CRL.A NO. 1613 OF 2007 ``` ``` 9 ``` the evidence of PW5 through whom the aforesaid document was marked is to the effect that, as on the date of seizure of the article, he was the Preventive Officer, Kunnamangalam and was in charge of Excise Inspector, Kunnamangalam. The aforesaid evidence goes against the contents of Ext.P4 forwarding note and it is yet another aspect which clearly indicates a serious shadow of doubt on the prosecution case. 11. In **Baburaj v. State of Kerala [ 2021(6) KHC 92]** it is observed by this Court that since the prosecution under Akbari Act is for offences of serious nature which attracts imprisonment up to 10 years, the burden on the part of the prosecution is heavy and court has to insist for stringent compliance of the statutory procedures and rigours of the statute in this regard. In such circumstances, the prosecution has an obligation to establish all the sequence of events right from the seizure of article and completion of the investigation by submitting final report. The documents prepared by the prosecution have to be in conformity with the statutory procedures prescribed in this regard. When I examine the materials produced by the ``` CRL.A NO. 1613 OF 2007 ``` ``` 10 ``` prosecution, I could find serious lapses on their part as observed above. In my view the aforesaid lapses are very crucial and fatal to the prosecution. In the light of the above, the appellant is entitled for benefit of doubt. 12. Thus when considering all the inputs available, I am of the view that interference is warranted in the order of conviction passed by the Sessions Court. The prosecution failed to establish the offence alleged against the appellant with necessary proof. In the result, this Criminal Appeal is allowed. Judgment dated 26.07.2007 of the Additional Sessions Court, Fast Track (Adhoc –II), Kozhikode passed in S.C. No.917/2004 is hereby set aside, the appellant/accused is found not guilty and acquitted of the charges. The bail bond executed by him shall stand cancelled. **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS