Bhaskaran v. State

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 CRL.A NO. 1961 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 26.09.2006 IN SC 117/2004 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KALPETTA, WAYANAD APPELLANT/ACCUSED: ``` ``` BHASKARAN, S/O. RAMAN, AGED 63 YEARS THEKKINATTUMPURATH HOUSE,, POST VALAD, MANANTHAVADY TALUK, WAYANAD DISTRICT. ``` ``` BY ADV SRI.N.J.ANTONY ``` ## **`RESPONDENTS/STATE:`** ``` 1SUB INSPECTOR OF POLICE, THALAPUZHA POLICE STATION, WAYANAD DISTRICT. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI M.C.ASHI ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1961 of 2006 2 ## **JUDGMENT** This appeal is directed against the judgment dated 26.9.2006 in S.C.No.117 of 2004 passed by the Additional Sessions Judge (Adhoc-I), Kalpetta. The appellant/accused was convicted under Section 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1,00,000/-. 2. The case of the prosecution is that on 9.8.2001 at 7.10 p.m. the accused was found in possession of 900 ml. of country made arrack in a plastic bottle near his residence at Karikanal. 3. After completing the investigation final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate-I, Mananthavady. The case was committed to the Sessions Court, Kalpetta from where it was made over to the trial Court. On the appearance of the accused charge was framed against him under Section 55(a) of the Abkari Act. He pleaded innocence. The trial Court after conclusion of the trial found that the accused is guilty of offence Crl.A.No.1961 of 2006 3 under Section 55(a) of the Abkari Act and was convicted and sentenced thereunder. 4. During the pendency of this appeal the appellant died. Notice was served on the legal heirs of the appellant so as to afford an opportunity to them to proceed with the appeal under the proviso to Section 394 Cr.P.C. None of the near relatives of the appellant turned up. 5. The learned counsel for the appellant contended that on the death of the appellant this Court has to direct for abatement of the appeal. The learned counsel for the appellant relying on the decision in **Pazhani** v. **State of Kerala (2017 (1) KHC 173)** further contended that this Court is not bound to decide the appeal on merits. 6. Per contra, the learned Public Prosecutor submitted that the sentence impugned, being a composite sentence of fine and imprisonment, the appeal shall not abate on the death of the accused. The learned Public Prosecutor further contended that this Court is bound to decide the appeal on merits. The learned Public Prosecutor relied on the decision in **Ramesan** v. **State of Kerala [(2020) 3 SCC 45]** to substantiate his contention. 7. I shall first consider the question as to whether, in the facts of this case, where the accused was sentenced for imprisonment Crl.A.No.1961 of 2006 4 as well as for fine, the appeal stands abated. 8. Abatement of appeal is dealt with in Section 394 of the Code of Criminal Procedure. Section 394 reads thus:- “ **394. Abatement of appeals.—(1)** Every other appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. _Explanation_ .—In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister.” Going by the mandate of Section 394 Cr.P.C., the appeal against a sentence of fine shall not abate on the death of the accused. Section 421 Cr.P.C. deals with the fine recoverable from movable and immovable properties of the accused. Section 421 Cr.P.C. reads thus:- “ **421. Warrant for levy of fine.—** (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may— (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Crl.A.No.1961 of 2006 5 Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of subsection (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.” It is also useful to refer to Section 70 of the Indian Penal Code which provides that death of the offender does not discharge from the liability any property which would legally liable for his debts. Section 70 reads thus:- “ **70. Fine leviable within six years, of during imprisonment. Death not to discharge property from liability** .—The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.” Crl.A.No.1961 of 2006 6 On the question whether the properties of the offender are liable to be proceeded with, after his death, in the context of the corresponding provision in the Code of Criminal Procedure, 1898 (S.431) the Apex Court in **Pranab Kumar Mitra** v. **State of West Bengal (AIR 1959 SC 144)** held that High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative. In **Bondada Gajapathi Rao** v. **State of A.P. (AIR 1964 SC 1645)** the Apex Court held that the principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. It was further held that if the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. In **Harnam Singh** v. **State of H.P. [(1975) 3 SCC 343]** the Apex Court held that if by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine. The Apex Court laid down the principle that even if sentence of fine is imposed along with the sentence of imprisonment under Section 431 Cr.P.C. Crl.A.No.1961 of 2006 7 (corresponding to Section 394 Cr.P.C. in the present Code), such an appeal shall not abate. In **Lakshmi Shanker Srivastava** v. **State (Delhi Admn.) [(1979) 1 SCC 229]** the Apex Court held that on the death of the appellant/accused the right to property of the legal representatives may be adversely affected and therefore, they would be entitled to continue the appeal. In **Pazhani’s** case (supra) the Full Bench of this Court held that an appeal from a sentence of fine would not abate if no relative of appellant comes forward to continue to prosecute the appeal. But, if the near relatives do not file an application to come on record, the Court can consign the appeal to record room. The Full Bench further held that the Appellate Court is not bound to consider the appeal on merits when fine also forms part of the sentence of imprisonment. 9. Relying on the decision in **Pazhani’s** case (supra) the learned counsel for the appellant contended that this Court is not in a position to decide the appeal on merits. 10. In **Ramesan’s** case (supra) which arose from a judgment of this Court in **Ramesan** v. **State of Kerala (2014 SCC OnLine Ker. 28794)** , wherein the accused was convicted and sentenced for an offence under Sections 55(a) and 55(g) of the Abkari Act and this Court decided the appeal on merits on the death of the Crl.A.No.1961 of 2006 8 ## accused, the Apex Court held thus:- “19. We, thus, conclude that the appeal filed by accused Ramesan in the High Court was not to abate on death of the accused. The High Court rightly did not direct for abatement of appeal and proceeded to consider the appeal on merits. The appeal before the High Court being against sentence of fine was required to be heard against the sentence of fine despite death of the appellant-accused. 20. Although, we have upheld the view of the High Court that appeal filed by the accused was not to abate and was required to be heard and decided on merits but there is one aspect of hearing of the appeal before the High Court, which needs to be noted. From the judgment of the High Court, it does not appear that after the death of the appellantaccused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. The High Court ought to have given an opportunity to the legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.” 11. This Court is bound to follow the law declared by the Apex Court. The resultant conclusion is that on the death of the appellant/accused in the case of a composite sentence of fine and imprisonment, the appeal shall not abate and this Court is bound to decide the appeal on merits, after giving sufficient opportunity to the near relatives of the appellant to proceed with the appeal against the sentence of fine. 12. Now, I shall come to the merits of the case. The Crl.A.No.1961 of 2006 9 offence was detected by the Sub Inspector of Police (PW1), Thalapuzha Police Station. On 9.8.2001, while PW1 was on patrol duty, on getting reliable information that the accused was selling illicit arrack near his residence, the Police team led by him proceeded to there. The accused was found standing on the pathway carrying a plastic bottle. The bottle contained illicit arrack. PW1 seized the contraband substance from the possession of the accused as per Ext.P2, seizure mahazer. The accused was arrested from the spot. According to PW1, the bottle contained 900ml. country made arrack. 13. Though the seizure was effected on 9.8.2001, the contraband substance said to have been recovered from the place of occurrence was produced before the Court on 14.9.2001 as per Ext.P4 list. PW1 has not given any satisfactory explanation for the delay in the production of the contraband substance before the Court. On the question of delay in the production of the properties, a Division Bench of this Court in **Ravi** v. **State of Kerala & another (2011 (3) KHC 121)** held thus:- “8(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C. or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the Crl.A.No.1961 of 2006 10 property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” 14. Ext.P7 is the certificate of chemical analysis prepared by the Assistant Chemical Examiner to Government Kerala. Ext.P7 shows that a bottle containing 900 ml. clear colourless liquid alleged to be arrack forwarded as per letter No.123/2001 dated 28.8.2001 was subjected to analysis in the laboratory. The covering letter attached to Ext.P5 forwarding note shows that the material object referred to in the forwarding note dated 21.9.2001 was forwarded to the laboratory. There is no evidence to ascertain the date on which the sample was forwarded to the laboratory. It has come out in evidence that the material object was produced before the Court only on 14.9.2001. Requisition for forwarding the sample to the laboratory was submitted on 21.9.2001. What was subjected to analysis in the laboratory is the sample received there on 29.9.2001, as per letter dated 28.8.2001. The necessary inference is that the sample forwarded from the Magistrate Court concerned prior to the production of the material object in the Court was subjected to analysis in the laboratory. Prosecution has failed to offer any explanation to this discrepancy. The necessary conclusion is that the prosecution failed to establish that the Crl.A.No.1961 of 2006 11 contraband substance allegedly recovered from the possession of the appellant was subjected to analysis in the laboratory. Resultantly, Ext.P7 certificate of chemical examination is of no evidentiary value. The upshot of the above discussion is that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt in the absence of evidence. The conviction and sentence passed by the Court below stand set aside. The appeal is allowed as above. **Sd/K.BABU Judge** TKS