## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE ANNIE JOHN**
**WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940**
## **CRL.A.No. 1785 of 2008**
**SC 518/2006 of ADDL. SESSIONS COURT(FAST TRACK (ADHOC NO.II), THRISSUR DATED 14-08-2008**
## **APPELLANT/ACCUSED:**
**CHACKOCHAN, S/O.POULOSE, KALLELY HOUSE, KODASSERY VILLAGE, KAMMALAM DESOM, THRISSUR.**
**BY ADV. SRI.T.N.MANOJ**
## **RESPONDENT/COMPLAINANT:**
**STATE OF KERALA THROUGH THE EXCISE INSPECTOR, CHALAKUDY EXCISE RANGE,, REP. BY PUBLIC PROSECUTOR., HIGH COURT OF KERALA, ERNAKULAM.**
## **OTHER PRESENT:**
**PP.SRI.K.N. SWAMIDAS**
**THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 09.10.2018, THE COURT ON 16.01.2019 PASSED THE FOLLOWING:**
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**CRL.A.No. 1785 of 2008**
## **JUDGMENT**
The appeal is against the judgment dated 14/08/2008 in S.C. No. 518 of 2006 on the file of the Additional Sessions Court (Fast Track No.II-Adhoc), Thrissur.
2. The prosecution case is that PW1 and PW2 and other excise officials were on patrol duty on 22.07.2004, they came across the appellant carrying MO1 can on the northern side of Pothodipalam while PW1 and PW2 and others were traveling from south to north along the Pariyaram-Kammalam road in the Excise jeep. On seeing the patrol party, the appellant got perplexed, the detecting officer restrained him immediately in the presence of PW3 and PW4 and seized the contraband articles from his possession. In fact, the appellant was carrying a jerrycan having a capacity of 10 litres and it had 4 litres of colorless liquid therein. On tasting and smelling, it was found that the jerrycan contained arrack. Then immediately, the appellant was arrested from the spot along with contraband articles. 300 ml of sample was extracted from the can. The can as well as the sample bottle were
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## **CRL.A.No. 1785 of 2008**
affixed with the seal of PW1 and they were labelled with labels containing the signature of PW1 and the appellant. The sample was sent for chemical analysis and Ext.P13 is the chemical analysis report which shows that the contraband articles contained 32.78% of ethyl alcohol. The Additional Sessions Court (Fast Track No.II-Adhoc), Thrissur has convicted the accused and sentenced him to undergo simple imprisonment for 4 years and pay fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for six months more.
3. According to PW1, the chief of the patrol party and PW2, the accompanying officials, on 22.07.2004 by about 5.30 pm, they were on patrol duty along the PariyaramKammalamraod and they were proceeding from south to north in the excise office jeep. While they reached the place of occurrence, they found the appellant carrying MO1. He was approaching the bridge. On sight of the patrol party, he got perplexed. Accordingly, they questioned the appellant and seized MO1 from his custody. According to PW1 and PW2, the jerrycan was inspected in the presence of independent witnesses who were examined as PW3 and PW4. The can was having a capacity of 10 litres and it was bearing 4 litres of colorless liquid. The liquid
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## **CRL.A.No. 1785 of 2008**
was smelt and tasted by the Excise Official as well as independent witnesses and they got convinced that it was arrack. The accused was appraised of the crime and he was arrested from the spot since preparing Ext.P1 arrest memo. The factum of arrest was also notified as per Ext.P2 arrest notice. The body of the accused was searched and the relative report was produced and marked as Ext.P3. According to them, 300 ml of sample was extracted from the jerrycan and a sample bottle and the can were properly sealed with the seal of PW1. Further, they have affixed the label containing the signatures of PW1 and the accused. Ext.P4 is the seizure mahazar bearing the signature of PW1 to PW4. Both PW1 and PW2 identified MO1 as well as the appellant / accused who was arrested from the spot. Thereafter, they reached the Excise Circle Inspector's office and subsequently, the properties as well as the accused were entrusted with Inspector of the Chalakudy Excise Range. In fact, PW3 and PW4 turned hostile to prosecution, even though they admitted their signature on Exts.P1, P3 and P4. PW5 is the Assistant Excise Inspector, Chalakudy Range. According to him, on 22.07.2004, he received the appellant as well as the contraband articles and registered the case. The crime and occurrence report was marked as Ext.P6.
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## **CRL.A.No. 1785 of 2008**
He forwarded the appellant to the court after preparing Ext.P7 remand report. The properties were produced before the court on 23.07.2004 after preparing Ext.P8 property list. Ext.P9 is the Forwarding Note and Ext.P10 is the covering letter. PW6 has conducted investigation in this case. According to him, the investigation was slightly belated. He has identified the place of incident with the help of PW2. Thereafter, he prepared Ext.P11 scene mahazar and Ext.P12 sketch. PW7 was examined to prove how the label affixed on MO1 got lost and how a hole developed in MO1. For this purpose, he has prepared Ext.P14 report disclosing the reasons regarding the loss of label in MO1 and development of the hole therein.
4. The main argument of the learned counsel for the appellant was that there is a gross delay in conducting investigation. The lower court has held that the delay might have occurred due to pendency of innumerable cases. So the court discarded the inordinate delay in conducting the investigation in this case. In fact, on verification of the records, it was revealed that the investigation was done about two years after detection of the occurrence. The prosecution has to explain how this delay happened in conducting investigation in this case. I quote the
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## **CRL.A.No. 1785 of 2008**
ruling in _**Krishnan H v. State**_ **[** 2015 (1) KHC 822], wherein it was held that long delay in conducting investigation and in the absence of sufficient explanation, the inordinate delay in conducting investigation is fatal and that it was held that the prosecution has not given any explanation as to why the investigating officer has not conducted investigation. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay but in this case there is a long delay in conducting the investigation. The prosecution has not offered any explanation regarding the inordinate delay in conducting the investigation. So this aspect of matter also cannot be brushed aside. Here in this case, there is two years delay in conducting the investigation after detection of the offence. No proper explanation was given from the side of the prosecution as to why the delay was caused in conducting investigation. In fact, MO1 produced before the court do not contain the label. According to PW1, PW3 and PW4, a label was affixed on MO1 can contain the signature of the detecting officer as well as the appellant / accused. No evidence was forthcoming for the court to establish this fact. Even the thondi list produced before the court does not explain the nature of the property
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## **CRL.A.No. 1785 of 2008**
produced before the court. In fact, there is no evidence to connect the accused with regard to MO1 produced before the court. In fact, the charge levelled against the accused is under Section 8 (1) and (2) of the Kerala Abkari Act. This is a very serious nature of offence and punishment is upto 10 years and fine is not less than Rs.1,00,000/-. So the burden is heavy on the prosecution to prove beyond doubt that the contraband articles MO1 produced before the court contained illicit arrack and it was seized from the possession of the appellant. It is true that the independent witnesses turned hostile to the prosecution. It is also well settled that if the evidence of the Excise officials inspires confidence, definitely their evidence can be acted upon. But here, a mere oral testimony of excise officials is not sufficient in the absence of cogent and convincing evidence in connecting the appellants with regard to MO1 contraband articles. In fact, the prosecution has failed to establish that MO1 jerrycan with contraband article were seized directly from the possession of the appellant / accused. On this ground alone, the appellant is entitled to get acquittal.
In the result, appeal is allowed and the sentence passed against the appellant is hereby set aside and he is acquitted of
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## **CRL.A.No. 1785 of 2008**
the charges leveled against him. The bail bond executed by him shall stand cancelled and he is set at liberty forthwith.
Sd/- **ANNIE JOHN**
**JUDGE**
rsr
