BINOY and THANKACHAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937 CRL.A.No. 194 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 133/2004 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA CP 66/2002 of J.F.C.M,NEDUMKANDOM ## APPELLANTS/ACCUSED 1 & 2: -------------------------- 1. BINOY, S/O.PAPPACHAN, CHAMAKKALAYIL VEEDU, MEDAKKULLI BHAGAM, VAZHITHALA KARA, MANARKADU VILLAGE. 2. THANKACHAN, S/O.KUNJU, MAMBETHIYIL VEEDU, VATHUKAPPU BHAGAM, MANJAKKUZHI KARA, RAJAKUMARI VILLAGE. BY ADV. SRI.SOORAJ ELANJICKAL RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, THROUGH SUB INSPECTOR OF POLICE, DEVIKULAM,, REPRESENTED BY PUBLIC PROSECUTO, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 194 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 1[st] day of February, 2016 ## **JUDGMENT** The appellants were convicted by the Additional Sessions Court (Ad hoc)-II, Thodupuzha, for the offence under Sections 55(g) and 8(2) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rupees one lakh each and, in default of payment of fine, to undergo rigorous imprisonment for three months each for the offence under Section 55(g) of the Abkari Act. No separate sentence was passed for the offence under Section 8(2) of the Abkari Act. Challenging the conviction and sentence passed by the court below, the appellants have preferred this appeal. 2. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor appearing for CRA 194/2006 2 ## the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Santhanpara, received information that illicit distilling of arrack was going on at Pathukappu in Manjakkuzhikkara in Rajakumari Village at about 4.30 p.m. on 17.8.2001. Therefore, PW1 and his party left for that place and reached there by about 5.30 p.m. when the appellants were seen sitting at the place of occurrence with the vessels and utensils for distilling arrack, 8 iron barrels and 2 jerrycans. Seeing the police party, the appellants ran away. But, the police captured the first appellant and the second appellant escaped. On examining the 200 litre size 8 iron barrels, 180 litres each of wash was found in 5 of them and the remaining three barrels were found empty. Two 10 litre size jerrycans, one white coloured and the other black coloured, were found to contain 9 litres each of arrack. After taking 180 ml. of wash as sample in a bottle, the barrels containing wash and other CRA 194/2006 3 barrels were destroyed. 180 ml. each of arrack was taken as samples in two separate bottles from the jerrycans. All these samples and the jerrycans were sealed. Two jerrycans, samples and the vessels and utensils were seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. The first appellant was arrested. Thereafter, PW1 and his party reached Santhanpara Police Station with the first appellant, properties and the records and registered Crime No.280 of 2001 of that Police Station. Ext.P3 is the F.I.R.thus drawn by PW1. PW1 had produced the first appellant before the Judicial First Class Magistrate's Court, Nedumkandam. The properties were also produced before the court along with Ext.P4 List of Property. The second appellant surrendered before the court. The investigation of the case was conducted by PW3, the Circle Inspector of Police, Devikulam. He had produced the Forwarding Note before the court for subjecting the samples to chemical analysis. Ext.P6 is a copy of that Forwarding Note. Ext.P5 CRA 194/2006 4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW3 questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thodupuzha. The court below framed a charge against the appellants alleging the offences under Sections 55(g) and 8(2) of the Abkari Act. The appellants pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P6 and MOs. 1 to 7 on their side. The appellants were examined under Section 313 of Cr.P.C. They denied the incriminating circumstances shown against them. The defence examined DW1 and CRA 194/2006 5 marked Exts.D1, D1(a) and D1(b) on their side. The court below, after considering the matter, found the appellants guilty of the offences under Sections 55(g) and 8(2) of the Abkari Act and convicted them thereunder. They were heard on the question of sentence and imposed the sentence on them. 5. The appellants have raised various contentions challenging the conviction and sentence passed against them. It is the case of the prosecution that the appellants were found in possession of 18 litres of arrack in two jerrycans and 900 litres of wash in iron barrels as also utensils and vessels used for distilling arrack at about 5.30 p.m. on 17.8.2001. The second appellant, according to the prosecution, ran away from the scene and hence could not be apprehended then. The police captured the first appellant and arrested him. Thereafter, the police party reached Santhanpara Police Station at about 7.45 p.m. on that day and registered the case against the appellants by CRA 194/2006 6 drawing Ext.P3 F.I.R. It is an admitted case that PW1 produced the properties including the contraband before the court along with Ext.P4 List of Property only on 13.12.2001. PWs.1 and 3 admitted before the court and Ext.P4 List of Property shows that the properties including the contraband reached the court only on 13.12.2001. What was the reason for occurring such an inordinate delay in reaching the properties including the contraband before the court? PW1 attempted to justify the delay by stating as follows: Since the quantity of the properties was large, jeep was required for taking them to the court. There was law and order duty on all days in connection with the problem of eviction of people from Mathikettan hills and hence jeep was not available. That was the reason for the delay in producing the properties before the court. PW3 stated that due to busy nature of work of PW1, the properties could not be produced before the court early and the delay that occurred was not intentional as he understood about that matter. Whether CRA 194/2006 7 these explanations offered by PW1 and PW3 can be accepted as true and justifiable? The delay that occurred in producing the properties before the court is nearly four months. It is unconscionable to claim and believe that PW1 or PW3 (who had taken over the investigation on 18.8.2001 itself) could not find time or secure vehicle for taking and producing the properties including the contraband from Santhanpara Police Station to the Judicial First Class Magistrate's Court, Nedumkandam, during the long period of about four months. The explanation or the justification offered by PWs 1 and 3 is not at all believable or acceptable as a valid reason for the inordinate long delay that occurred in producing the properties before the court. Another aspect also has to be considered here. Items 8, 9 and 10 in Ext.P4 List of Property are only three 180 ml.bottles containing samples of arrack and wash. For producing these three items before the court, no vehicle was necessary. But, those samples were not produced soon before the CRA 194/2006 8 court. But, they were produced along with other items of properties only on 13.12.2001. 6. The production of contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. A bald statement, as made by PW1 and PW3, cannot be accepted as a satisfactory explanation for such an inordinate delay that occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala (2011(3)KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW1 or PW3 is not proper and satisfactory. The inordinate long delay that occurred in this case in producing the properties including the contraband and their samples before the court is fatal to the CRA 194/2006 9 prosecution case. 7. Whether the properties including the contraband were under safe custody after they reached Santhanpara Police Station at about 7.45 p.m. on 17.8.2001? PW1, while he was in the witness box, claimed that the properties were under his safe custody till they were produced before the court. Can it be accepted? Ext.D1(a) entry made by PW1 in the General Diary of the Police Station at 8.05 p.m. on 17.8.2001 (Entry No.28) shows that he had entrusted the first appellant and the properties for custody with 'പ�റ�വ�' and left for taking rest. Therefore, PW1 had parted with the properties including the contraband at 8.05 p.m. on 17.8.2001 and thereafter they were with the person who was on sentry duty. That person was not made a witness or examined in this case. Ext.D1(a) entry made in the General Diary of the Police Station falsifies the case of PW1 that the properties were under his safe custody till they were produced before the court on 13.12.2001. Moreover, there CRA 194/2006 10 is no evidence as to under whose custody the properties were kept during the said period. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also such a benefit is to be extended to the appellants. 8. Exhibit P5 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected CRA 194/2006 11 in all the samples. It is also certified that the seals on the packets were intact and found tallied with the sample seal provided. Ext.P6 is a copy of the Forwarding Note. The three samples of the contraband items claimed to have collected by the Investigating Agency were sent to the Chemical Examiner for analysis along with the original of Ext.P6 Forwarding Note. The specimen seal impression is seen in Ext.P6. Whether the samples produced by the Investigating Agency before the court were really the samples of wash and arrack allegedly found in the possession of the appellants as claimed by the prosecution? PW1 claimed that the samples were taken from the wash and the arrack allegedly found in the possession of the appellants. PW2, the Head Constable attached to Santhanpara Police Station claimed to have accompanied PW1 at the time of detection of the offence, also deposed before the court that the samples were so taken from the wash and the arrack. But, such a case of the prosecution CRA 194/2006 12 does not appear in Ext.P2 Seizure Mahazar. Ext.P2 does not say that 180 ml.each of the wash and the arrack were taken in separate bottles as samples. If, in fact, the samples were so taken by PW1 from the place of occurrence, what prevented him from stating so in Ext.P2 Seizure Mahazar. The absence of such a statement in Ext.P2 assumes significance in the light of other facts available in this case. In order to prove the detection of the occurrence and seizure of the properties including the contraband, the prosecution had cited PWs.4 and 5 as independent witnesses. But, both of them did not support at all the prosecution version of occurrence. Moreover, the samples reached the court only on 13.12.2001. When all these facts are considered together, it is rather difficult to swallow the case pleaded by the prosecution in regard to the collection of samples from the bulk claimed to have seized by PW1 from the appellants. Therefore, no sanctity could be attached to the report contained in Ext.P5 Certificate of CRA 194/2006 13 Chemical Analysis that ethyl alcohol was present in the samples. The appellants, at least, are entitled to the benefit of doubt in regard to this matter. 9. It is the definite case of the defence that the case pleaded by the prosecution had not taken place at the place alleged by the prosecution. PW3, the Investigating Officer, claimed that he had gone to the place of occurrence. But, he had not cared to prepare a Scene Mahazar describing the scene as well as the presence of the properties claimed to have destroyed by PW1 and his party at the place of occurrence. What was the special reason for not preparing a Scene Mahazar? PW3 has not offered any explanation for the same. 10. For the foregoing reasons, the impugned conviction and sentence passed by the court below are liable to be set aside. The appellants are entitled to be acquitted of the offences under Sections 55(g) and 8(2) of the Abkari Act. 11. In the result, the conviction entered by the court CRA 194/2006 14 below against of the appellants for the offences under Sections 55(g) and 8(2) of the Abkari Act is set aside. The sentence passed against the appellants by the court below are also set aside. The appellants are acquitted of the offences under Sections 55(g) and 8(2) of the Abkari Act. They are set at liberty. The bail bonds executed by the appellants shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 194/2006 15