Chandran s/o Raghavan v. State - Palakkad Excise Range

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942** ## **CRL.A.No.750 OF 2006** **AGAINST THE JUDGMENT DATED 17.03.2006 IN S.C.NO.192/2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO.II, PALAKKAD** ## **APPELLANT/2ND ACCUSED:** **CHANDRAN S/O. RAGHAVAN,ARANITHURUTHI VEETTIL, MUDAPPALLOOR,, ALATHUR, PALAKKAD.** **BY ADV. SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/COMPLAINANT:** **STATE - PALAKKAD EXCISE RANGE ,(CRIME NO.9 OF 2003), REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SMT.S.L.SYLAJA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.750 OF 2006 2 ## **JUDGMENT** ## **Dated this the 22[nd] day of February 2021** The appellant is the 2[nd] accused in Sessions Case No.192 of 2005 on the files of the Additional Sessions Judge, Fast Track Court No.II, Palakkad. The above case is charge sheeted against the appellant and another alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 12.04.2003, the accused 1 and 2 were found transporting Indian Made Foreign Liquor in 48 cases each containing 12 bottles having the capacity of 750ml each in Toyota Mini lorry bearing registration No.GA 02/V-6001 DCM in contravention of the provisions of the Abkari Act and Rules at Walayar Check Post. Hence, it is alleged that the accused committed the aforesaid offence. 3. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P20 were marked on the side of the prosecution. MO1 to MO6 are the material objects. After going through the evidence and the documents, the trial court found that the 2[nd] accused, who is the appellant in this case is guilty under Section 55(a) of the Abkari Act. The 1[st] accused was acquitted. The 2[nd] accused was sentenced to undergo rigorous CRL.A.No.750 OF 2006 3 imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the 2[nd] accused was directed to undergo simple imprisonment for a further period of one year. Aggrieved by the conviction and sentence, this Crl. Appeal is filed by the 2[nd] accused. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that the appellant was the a driver of the Prasanna Transportation Company and it is a cargo parcel service and he was not in conscious possession of the contraband article. His duty is only to transport the goods handed over to him in the vehicle to the place where it is to be unloaded. The counsel submitted that the driver may not know the contents of the parcel and he has no authority to open the load. The counsel submitted that the investigating officer after investigating the case submitted the final report in which he actually exonerated the appellant, who is the 2[nd] accused. The counsel takes me through the relevant portion of the final report, in which the investigating officer exonerated the appellant / 2nd accused. The counsel submitted that the same version was deposed by the Investigating Officer while he was examined before the court CRL.A.No.750 OF 2006 4 also. In the light of the above submission, the counsel submitted that the accused is entitled to the benefit of doubt. The counsel for the appellant also submitted that there is delay in producing the contraband article before the court and there is absolutely no explanation for this delay. 6. The learned Public Prosecutor submitted that huge quantity of Indian Made Foreign Liquor is seized from the vehicle in which the appellant was the driver. The Public Prosecutor submitted that it is the duty of the appellant to explain the contraband articles seized from the vehicle, in which he was the driver. 7. The Prosecutor submitted that the lower court convicted and sentenced the appellant based on legal evidence and there is nothing to interfere with the same. 8. The point for consideration in this case is whether the appellant / 2[nd] accused committed the offence under Section 55(a) of the Abkari Act. 9. Altogether 6 witnesses were examined by the prosecution. PW1 is the detecting officer. PW2 is the Sales Tax Inspector of Walayar Check Post. PW3 and 4 are the occurrence witnesses cited by the prosecution, but they turned hostile to the prosecution. PW5 is also an attesting witness in the seizure CRL.A.No.750 OF 2006 5 mahazar, but he also turned hostile to the prosecution case. PW6 is the Excise Circle Inspector who conducted the investigation. The prosecution is relying the evidences of PW1, PW2 and PW6. I perused the evidence of PW6, the investigating officer. PW6, the investigating officer in his deposition stated like this: – "വവാളയവാററില്‍ പറിടറിച്ച parcel കള്‍ പ്രസന്ന Transport എന്ന കമ്പനറി മുഖഖേനയവാണണ് വന്നതണ്. ടറി കമ്പനറിയയക്കുററിച്ചണ് ഞവാന്‍ അഖനന്വേഷണണ നടതറി. ഇനന്ത് റിലവാകമവാനണ Net work ഉള്ള പവാര്‍സല്‍ കമ്പനറിയവായണന്നവാണണ് മനസറിലവായതണ്. ടറി കമ്പനറിഖയവാ വവാദറിയുയട ഉടമസ്ഥഖനവാ, ഡഡ്രൈവഖറവാ അററിയവായതയവാണണ് മദന്ത്യണ കടതറിയതണ് എന്നണ് മനസറിലവായതവായറി ഞവാന്‍ final report -ല്‍ പ്രതറിപവാദറിച്ചറിട്ടുണണ് ." The same version was given by the investigating officer in his final report also. Admittedly, the appellant is the driver of the vehicle and he is an employee of the company. When the investigating officer is convinced during the investigation that the driver of the vehicle is not aware of the contents in the lorry, how he charge sheeted the appellant / 2[nd] accused is to be explained by the prosecution. The trial court considered this point and blamed the investigating officer. The relevant portion of the judgment of the trial court is extracted hereunder: “PW6 investigating Officer has deposed before court during the course of cross examination on behalf of the second accused to the effect that the contraband articles involved in this CRL.A.No.750 OF 2006 6 case were transported without the knowledge of the second accused (Vide Page No.11 of his deposition) and that he has stated this fact in his final report submitted before court. It is seen that the final report submitted by him before court in Paragraph No.2 under column No.13(brief statement of case), he has stated that even though he was convinced that the second accused has no connection with the offence alleged in this case and that he is a mere technical offender, he has not deleted him (A2) from the array of the accused in order to enable him to get a clean chit of innocence from the court, by bring him before court. Virtually the investigating Officer has recommended to a court of law for acquitting the accused who committed a grave Abkari crime. This conduct of the said Officer, I feel, is quite unbecoming of a responsible investigating Officer and has exceeded the barriers warranting Departmental action against him.” 10. But in the light of the evidence adduced by PW6 and his conclusion in the final report, this Court cannot confirm the conviction and the sentence imposed on the appellant, when there is no evidence available in this case. Moreover, the alleged seizure in this case was on 12.04.2003. The properties were produced before the Court only on 29.04.2003. There is absolutely no explanation for the delay. When this was put to the investigating officer by the prosecutor concerned during the reexamination, there was no answer from the investigating officer. It is mandatory for the officials to produce the contraband articles before the court concerned forthwith. If there is no CRL.A.No.750 OF 2006 7 explanation for the delay in producing the contraband, the accused is entitled to benefit of doubt. 11. The seizure of the contraband in this case was on 12.04.2003. The sample reached the court only on 29.04.2003. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822)** . Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, CRL.A.No.750 OF 2006 8 without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 12. In the light of the above discussion, the appellant / 2[nd] accused is entitled to the benefit of doubt. Therefore, the Crl. Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 17.03.2006 in S.C.No.192 of 2005 on the files of the Additional Sessions Judge, Fast Track Court No.II, Palakkad are set aside. The appellant is set at liberty and bail bond, if any, executed by him stands cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** DK