Balakrishnan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 617 OF 2012 ``` ``` AGAINST THE JUDGMENT IN CRA 137/2009 OF ADDITIONAL DISTRICT & SESSIONS COURT, VATAKARA SC 729/2006 OF ASSISTANT SESSIONS COURT, VADAKARA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` BALAKRISHNAN, AGED 56 YEARS ``` ``` S/O. KANNAN, THEKKE THOONORE (H), MUDAPPILAVIL AMSOM, MANTHARATHOOR DESOM, VATAKARA. ``` ``` BY ADV SRI.P.M.HABEEB ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.44/2004 OF VATAKARA EXCISE RANGE). ``` ## **`OTHER PRESENT:`** ``` PP - M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.617 of 2012 2 ## **VIJU ABRAHAM,J** **.............................................. Crl.R.P.No.617 of 2012 .............................................. Dated this the 12[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.729 of 2006 on the file of the Assistant Sessions Court, Vadakara registered alleging commission of offence punishable under Section 8(1) of the Kerala Abkari Act. 2. The prosecution case is that on 10.08.2004 at 4.15 p.m., the accused was found in possession of 2 litres of arrack in a can of 5 litres capacity at the canal road which leads to Maniyur side in Mantharathur amsom and thereby the revision petitioner/accused has committed the alleged offence. 3. The prosecution in support of their case examined PW1 to PW8 and marked Exts.P1 to P9. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months **.** It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.137 of 2009 before the Additional District and Sessions Court, Vatakara, the same Crl.RP No.617 of 2012 3 was disposed of confirming the conviction and modifying the sentence imposed by the trial court as six months rigorous imprisonment and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. 5. The specific case put forwarded by the learned counsel appearing for the revision petitioner is that no label has been affixed on the sample bottle. The evidence of PW1 detecting officer is that on the can, label was affixed and witnesses and the accused have also signed, but he admits that in Ext.P2 mahazar the same is not seen recorded. PW5 in cross-examination would depose that it cannot be said as to whether the signature of the accused and the witnesses were affixed on the label. So on the basis of the same, it is the contention of the learned counsel for the revision petitioner that there is no conclusive evidence regarding the labelling of the bottle, especially when the said details regarding the affixture of signatures of the witnesses and the accused is not seen mentioned in Ext.P2 mahazar and the benefit of doubt will have to go in favour of the revision petitioner. Yet another contention raised by the petitioner is the delay in completing the investigation. Revision petitioner would contend that the occurrence was on 10.08.2004 whereas the final report was filed only on 28.04.2006 in spite of the fact that the chemical analysis report was ready on 02.12.2005. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from Crl.RP No.617 of 2012 4 examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention is regarding the lack of label being affixed on the sample bottle and the non-mentioning of the same in Ext P2 mahazar. In **Sasidharan v. State of Kerala, 2007 (1) KLT 720,** this court in paragraph 10 of the judgment held as follows: _“10. There is yet another infirmity in the evidence. While according to PWs 1 and 2 and the recitals in Ext.P1 mahazar, the seized can was sealed and labelled, the property list does not show that the can which was produced in court was sealed. PW4 has admitted that in Ext.P4 filed by him in court there is no mention that the can which was seized was either sealed or labelled. M.O.1 can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs.1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.1 as the can which was allegedly seized from the appellant. It is not possible to accept the identification of the can,_ Crl.RP No.617 of 2012 5 _by such officers who are not possessed of super-human powers of recollection.”_ ## In **Sumathy v. State of Kerala, 2016 (4) KLT SN 37** the court held in paragraph 7 as follows: _“7. Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence, after taking sample. They failed to affix label in MO1. Affixing label in the contraband articles and obtaining signature in the presence of the independent witnesses ensure the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime-Detection, enquiry, trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW2 admitted that no label was found in the seized articles when he was examined before court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon such evidence.”_ In view of the above, the non-affixture of label in the sample bottle is fatal to the case of the prosecution. 8. Yet another contention raised by the petitioner is the delay in completing the investigation. Revision petitioner would contend that the occurrence was on 10.08.2004 whereas the final report was filed only on 28.04.2006 in spite of the fact that the chemical analysis report was ready on 02.12.2005. Section 50 of the Abkari Act mandates that every Crl.RP No.617 of 2012 6 investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** , _**Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT 718**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was_ Crl.RP No.617 of 2012 7 _submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” ## In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ Crl.RP No.617 of 2012 8 In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 9. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** cks