Chandran @ Chandrashekhaharan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938 Crl.Rev.Pet.No. 347 of 2011 ( ) -------------------------------Crl.A 269/2009 of SESSIONS COURT,KASARAGOD SC 291/2007 of ASST.SESSIONS COURT, KASARAGOD REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- CHANDRAN @ CHANDRASHEKAHARAN, AGED 50 YEARS, S/O.THIMAPPA, R/AT NELLIKATTA HOUSE, NEKRAJE VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADVS.SRI.K.P.HARISH SMT.M.SHAZIA SULTHANA RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------- STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI C K PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## Crl.R.P.No.347 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September 2016 ## O R D E R The accused in S.C.No.291 of 2007 on the files of the Assistant Sessions Court, Kasaragod filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 55 (a) of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 7.1.2006 at 6.55 p.m., the revision petitioner was found in possession of 55 packets, each packet having a capacity of 100 ml Crl.R.P.347/2011 : 2 : each, containing Karnataka made arrack, in contravention of the provisions of the Abkari Act. 4. The revision petitioner was arrested from the spot and the contraband articles were seized by PW1 as per Ext.P2 seizure mahazar. 5. The inventory of the material objects was prepared by PW1 and he handed over the same to the Assistant Excise Inspector. Thereafter, the said inventory was certified by the learned Magistrate. The investigation was conducted by PW3. After completing the investigation, PW3 filed the final report before the court. 6. Before the trial court, PW1 to PW4 were examined and Exts.P1 to P9 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner. Crl.R.P.347/2011 : 3 : 7. The learned counsel for the revision petitioner has argued that since the inventory in this case was prepared by an officer, who was not authorised to prepare the inventory, the revision petitioner is entitled to benefit of doubt. 8. PW1 was the Sub Inspector of Police, who detected the offence. PW1 stated that after detecting the offence, he seized the contraband as per Ext.P2 mahazar. PW1 also arrested the revision petitioner from the spot. Thereafter, PW1 brought the material objects and the revision petitioner to the police station along with contemporary records and thereafter, the crime was registered. The further evidence of PW1 is that he prepared the inventory and forwarded the same to the Assistant Excise Commissioner. Ext.P7(a) is the inventory prepared by Crl.R.P.347/2011 : 4 : PW1. Ext.P7(b) is the photograph and Ext.P7(c) is the Negative of the photograph. It is to be noted that Ext.P7(b) does not appear to be the photograph of the contraband seized. What is seen from Ext.P7(b) is the photograph of a plastic bag containing some article inside it. Ext.P7(a) would show that the inventory was prepared by PW1, the Sub Inspector of Police, Badiaka Police Station on 8.1.2006. The evidence of PW1 would also show that he prepared the inventory in this case. It appears from Ext.P7 (a) that the Assistant Excise Inspector had signed the inventory. The date on which the inventory was signed by the Assistant Excise Inspector is not shown in Ext.P7(a). It is not discernible as to why the date on which the Assistant Excise Commissioner put his signature in Ext.P7(a) Crl.R.P.347/2011 : 5 : inventory was not shown in Ext.P7(a). The final report in this case was filed on 7.11.2006 after completing the investigation. It is very relevant to note that the contraband articles were certified by the jurisdictional Magistrate only on 25.11.2006, which was subsequent to the filing of the final report. It is not discernible as to why there was inordinate delay in making application to the learned Magistrate for certification. No explanation had been given by the prosecution as to why the application was not submitted to the learned Magistrate for certifying the correctness of the inventory immediately after preparation of the inventory. 9. At this juncture, it is relevant to read Section 53A of the Abkari Act, which is extracted hereunder:- Crl.R.P.347/2011 : 6 : “ **53A. Disposal of seized liquor, intoxicating drugs or articles.-** (1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after their seizure, be disposed of by the authorised officer referred to in section 67B, in such manner as the Government may, from time to time determine after following the procedure hereinafter specified. (2) Where any such notified liquor, intoxicating drug or, article has been seized under this Act, the authorised officer shall prepare an inventory of such liquor, intoxicating Crl.R.P.347/2011 : 7 : drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article in any proceedings under this Act and make an application to any Magistrate for the purpose of :- (a) certifying the correctness of the inventory so prepared: or (b) taking, in the presence of such Magistrate photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or - (c) Allowing to draw representative - samples of such liquor, intoxicating drug or Crl.R.P.347/2011 : 8 : article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.” 10. Sub section (1) of Section 53A of the Abkari Act provides that the authorised officer under Section 53A of the Abkari Act is the authorised officer referred to in Section 67B of the Abkari Act. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. S.R.O. No.671/75 provides that the Assistant Commissioners in charge of Excise Divisions are authorised officers under Sub Section (1) of Section 67B of the Abkari Act for the purpose of Section 67B within Crl.R.P.347/2011 : 9 : their respective jurisdiction. In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub section (2) of section 53A of the Abkari Act. Since Ext.P7 (a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the court. However, in this case, the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P7(a) inventory, which is patently illegal and consequently, the revision petitioner is entitled to acquittal. Crl.R.P.347/2011 : 10 : 11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is Crl.R.P.347/2011 **==> picture [30 x 11] intentionally omitted <==** only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the sample till its production before the court. 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] 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 Crl.R.P.347/2011 **==> picture [30 x 11] intentionally omitted <==** seizure of the contraband itself. The detection was effected on 7.1.2006. The statement of witnesses was recorded on 8.1.2006 and 9.1.2006. Even then, the final report was filed before the court only on 7.11.2006. 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). 13. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained. Crl.R.P.347/2011 : 13 : In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and he is set at liberty. Needless to state that if the revision petitioner had deposited any amount before the trial court as per the direction of this court dated 2.2.2011 in Crl.M.A.No.1005 of 2011, the revision petitioner is entitled to reimbursement of the said amount from the trial court. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.22.9..2016_ _// True Copy //_ _PA to Judge_