Chandran v. State of Kerala (Criminal Revision Petition)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 Crl.Rev.Pet.No. 836 of 2002() ----------------------------CRA.52/1999 of SESSIONS COURT, KOZHIKOE CC.208/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- CHANDRAN, S/O.PONNATH KADUKKUDI NAGAN, KODIYATHUR AMSOM, PANNIKKODE DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN,J** **-----------------------------** ## **Crl.R.P.No.836 of 2002** **----------------------------------------** Dated this the 24[th] day of June, 2011 ## **ORDER** The sole accused in a prosecution for the offence under Section 55(g) of the Abkari Act is the revision petitioner and this revision, he challenges his conviction and sentence for the said offence. 2. The prosecution case is that on 17.1.1997 at about 5.00 p.m when the Circle Inspector of Excise and Special Preventive Officer, of Special Squad on patrol duty, they found the accused transporting 10 liters of wash in a plastic pot of 12 liters capacity along with public road from Muthapparambil to Aradikkunnu Harijan Colony and in front of the house of one Poovathikkandi Madhavan and thus, the accused was arrested and accordingly, he committed the offence punishable under Section 55 (g) of the Abkari Act. The trial court as well as the appellate court found that the accused/petitioner is guilty under Section 55 (g) and accordingly he is convicted and sentenced. It is the above conviction and sentence challenged in this revision ## **Crl.R.P.No.836 of 2002 2** petition. 3. I have heard Sri. P.V.Kunjikrishnan, the learned counsel appearing for the revision petitioner and the learned Public Prosecutor for the State. 4. With the above said allegation Crime No.8/97 of Excise Inspector, Kunnamangalam was registered for the said offence as Ext.P3 occurrence report and thereafter on completion of the investigation, complaint was filed by the Excise Inspector, Kunnamangalam based upon which cognizance was taken for the above offence by the learned Magistrate of the Judicial First Class Magistrate-I, Thamarassery and instituted C.C.No.208/1997. When the accused appeared, a formal charge was framed which read over and explained to him and he denied the charge and pleaded not guilty, consequently the trial was further proceeded during which PWs 1 to 5 were examined and Exts.P1 to P6 were marked from the side of the prosecution. A plastic pot is produced and marked as MO1. No evidence either oral or documentary produced from the side of the defence. The trial court on conclusion of the trial, found ## **Crl.R.P.No.836 of 2002 3** that the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and accordingly, the accused is convicted under Section 55(g) of Abkari Act and sentenced him to pay fine of Rs.25,000/- and to undergo simple imprisonment for one year. The default sentence is fixed as 3 months simple imprisonment. 5. Challenging the above conviction and sentence and judgment of the trial court, the petitioner herein had preferred an appeal, but by judgment dated 7.11.2001 in Crl.Appeal No.52/99 the court of Sessions, Kozhikkode allowed the appeal only in part and while confirming the conviction, the substantial sentence is reduced into imprisonment for a period of 6 months. The sentence of fine as well as the default sentence are also confirmed. It is the above conviction and sentence imposed against the petitioner and the judgment of the court below are challenged in this revision petition. 6. Sri.P.V.Kunjikrishnan, the learned counsel appearing for the petitioner vehemently submitted that the findings of the courts below and the conviction recorded are ## **Crl.R.P.No.836 of 2002 4** unsustainable either on law or on facts involved in the case. During the argument, the learned counsel strenuously submitted that even going by the factual allegation against the petitioner and the materials produced by the prosecution, no offence under Section 55(g) of the Abkari Act is attracted. Another ground urged by the counsel in support of his plea for an acquittal is the delay that occurred in producing the materials before the court. The third submission of the learned counsel is that the sentence imposed against the revision petitioner is exorbitant and unreasonable. 7. The learned counsel submitted that in order to attract Section 55(g) of the Kerala Abkari Act, the prosecution has to prove that, the material alleged to have found in possession of the petitioner, and the prosecution has to further prove and establish that the same was for the purpose of manufacturing liquor other than toddy or intoxicating drug. After taking me, through the deposition of the prosecution witnesses and the documentary evidence such as Ext.P1 mahazar, the learned counsel submitted that ## **Crl.R.P.No.836 of 2002 5** there is no whisper in any of the documents or in the deposition of the witnesses to the effect that the accused was found in possession of the wash for the purpose of manufacturing the liquor. In support of the above submission, learned counsel placed reliance upon the decision of this Court in **2007(2) KLT 636 Santhosh v State of Kerala.** 8. In order to substantiate the second contention regarding the delay, the learned counsel took me through the deposition of PW5 and the other connected documents and pointed out that though the alleged seizure was on 17.1.97, the material documents and article reached in the court only on 21.1.1997 and there is no explanation for the delay. According to the learned counsel the unexplained delay will go against the prosecution and in support of the above contention, the learned counsel placed reliance upon the decision of this Court reported in **2002(3) KLT 725** ## **Narayani v. Excise inspector.** 9. On the other hand, resisting the above contention of the learned counsel for the petitioner, the learned Public **Crl.R.P.No.836 of 2002 6** Prosecutor submitted that the material seized from the possession of the petitioner is meant for manufacturing liquor and therefore, the contention of the learned counsel cannot be accepted. It is also the submission of the learned counsel that the Public Prosecutor, prosecution evidence including the documentary evidence un-erringly pointing towards the guilt of the accused and there is no dispute regarding the seizure of the contraband article from the possession of the petitioner. It is the further submission of the learned Public Prosecutor that when PW5 was examined he had deposed that though the articles and documents were produced in his office, he was on leave for the period from 17.1.97 and 20.1.97 and there was an officer in-charge of the Excise Range and the articles and documents were produced before him on 21.1.97 and in turn the same produced on the next date that 22.1.97 before the court. Thus, according to the learned Public Prosecutor, there is no delay and even if there are minor delay the same is already explained and therefore, the delay cannot be a ground for an acquittal especially, in the light of the ## **Crl.R.P.No.836 of 2002 7** decisions of this court reported in **2006(4) KLT 469 Kunjikannan v. State of Kerala** and **2007(1) KLT 1010 Vikraman v. State of Kerala.** 10. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the learned Public Prosecutor and I have carefully perused the judgments of the court below and gone through the authorities cited I have scrutinized the evidence and materials on record. 11. In the light of the rival pleadings advanced by the learned counsel for the petitioner and the learned Public Prosecutor and in the light of the facts and circumstances involved in this case, the question to be considered is whether the prosecution has succeeded in proving the offence under Section 55(g) of the Abkari Act against the petitioner and whether any interference is warranted with respect to the judgments of the court below. In order to answer the above question firstly, we have to refer Section 55(g) which read as: 55(g): uses, keeps, or has in his ## **Crl.R.P.No.836 of 2002 8** possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; A learned judge of this Court in the decision in 2007(2) KLT 636 has held that the possession of such materials by itself will not amount to an offence under Section 55(g), in the absence of allegations or materials to show that such possession was for the purpose of manufacturing liquor. Now let us examine the evidence and materials available on record. The specific prosecution case is that the accused was found in possession of wash on 17.1.97 at about 5.00 p.m which was seized by PWs.1 and 2 who were on patrol duty. Ext.P5 is the mahazar which according to the prosecution prepared then and there on the detection of the offence. What is stated in Ext.P1 that; (ട� വ�ഷ� ശര�രവവളത�ല കല�� വ�ല� �വസ�ര� എന�വ ച�രത� മദ�രസ� ഉല��ദ���ച� �ര�യ� വ�റ�ന പ�കവ�ട%ത�യത�ണ�. വ�ഷ� കകവശ� വചത� ��ലവ�ല%ള അബ�ക�ര� ആക� പപക�ര� ക%റകരമ�കയ�ല ട� കട%�%ട� ��കന മകന �പ0വ� പപത�യ�യ� അറസ% വ�യ%കയ%� ട� 10 ല�റര വ�ഷട�� 12 ല�റര പ�സ��� ക %ട� വത�ണ�യ�യ� ## **Crl.R.P.No.836 of 2002 9** കസഡ�യ�വലട%�%കയ%� വ�യ�ത%. ട� വ�ഷ�ല ��ന%� 750 m1 വക�ള%ന ഒര % ക %��യ�ല ഉച;ശ� 500m1 വ�ഷ� സ��പ�ള���വയട%ത� സ=ല വ�യ�ത� ചലബല ഒട�ച%. ) In Ext.P1 mahazar there is no averment to the effect that the contraband article which alleged to have found in possession of the petitioner and seized are kept in possession for the purpose of manufacturing liquor. When PW1 was examined who is none other than the Circle Inspector of Excise, he has no specific case that the wash was kept in possession by the accused for the purpose of manufacturing liquor. In his chief examination itself he had stated; ശര�ര, വ�ല�, �വസ�ര� എന�വ ച�രത% പ%ള���ചത�യ� കണ%. Abkari Act �% വ�പര=തമ�യ� Wash കകവശ� വച% കടത�ന (ശമ�ച പപത�വയ Arrest വ�യ�ത%. He has no case that the petitioner was found in possession of any contraband article, engaged in manufacturing process or in possession of any apparatus for the purpose of illicit distillation of the liquor. No such materials were also recovered from him. When PW2 examined he had also ## **Crl.R.P.No.836 of 2002 10** deposed in terms of what deposed by PW1. When the officer who filed the complaint was examined as PW5 he never stated that the accused had kept the contraband article for the purpose of manufacturing the liquor. In the decision cited supra the learned Judge of this Court has further held in paragraph 11; “11.In short, there is no semblance of specific allegation which can indicate that the possession of the articles in question was for the purpose of manufacturing liquor. Possession simpliciter of articles which can be used for the purpose of manufacturing liquor also cannot in the absence of cogent and probative indications be assumed to be possession for the purpose of manufacturing illicit liquor as to justify indictment under S.55(g) of the Abkari Act.” The facts and circumstances involved in the case cited supra are similar to that of the present one. As I indicated earlier, the prosecution has no case that the revision petitioner was arrested on allegation that he found engaged in the process of manufacturing illicit arrack or in ## **Crl.R.P.No.836 of 2002 11** possession of apparatus for the illicit distillation of arrack. The mere allegation of the prosecution is that the accused was found in possession, unless there are allegation to the effect that the so called possession was for the purpose of manufacturing of liquor or supported by attendant circumstances, I am of the view that the prosecution has miserably failed to establish the essential ingredient to Section 55(g) of the Act. 12. It is also pertinent to note that though according to the prosecution, the seizure was effected on 17.1.97 and the documents were prepared and the accused was arrested then and there, the sample, the material object and documents were produced before the court only on 22.1.97. When PW5 was examined, he had deposed that he came to know that the materials were produced before his office on 17.1.97 but he was on leave for the period from 17.1.97 to 20.1.97. It is the further evidence of PW5 that before him materials were produced on 21.1.97 and in turn he produced the same before the court on 22.1.97. He had stated that when he was on leave, there was another officer ## **Crl.R.P.No.836 of 2002 12** in charge of the Kunnamangalam Excise Range. The learned Public Prosecutor submitted that PW5 has explained the delay that occurred in reaching the materials and documents before the court below. I am unable to accept the above contention. The mere explanation is not sufficient to condone the delay. In the present case even according to PW5 another officer was in-charge of the Kunnamangalam Excise Range when the materials and the documents were produced. At the time of filing the complaint the officer-in charge was not made a witness and he was not examined. Though PW5 made an evasive explanations, that is not sufficient to salvage culpable defect committed by the “other officer” in not producing the materials and documents before the court in time. Had the prosecution, examined the other officer, probably he could assigned the reasons for the delay and if so, it is then for the court to consider whether the explanation was proper and acceptable. In the absence of evidence or explanation for the part of the officer-in charge, who is responsible for the delay in producing the materials before the court, it ## **Crl.R.P.No.836 of 2002 13** cannot be said that the prosecution has explained the delay, even though, the delay is 4 days. 13. The non-explanation of the delay assumes importance in the light of the facts and circumstances involved in this case. According to the prosecution in the present case after seizure and the sampling the contraband articles were destroyed. There is vacuum of evidence as to where the samples and the materials were kept and who was the custodian of the articles and documents. Absolutely, there is no evidence so the tampering of the samples etc. cannot be ruled out. Therefore, the decision relied on by the prosecution that is reported in **2007 (1) KLT 1010 Vikraman v. State of Kerala** is not helpful. According to the above decision every delay cannot be a ground against the prosecution especially when there is statutory explanation offered for the delay. In the present case the delay is not properly and convincingly explained. Therefore, according to me, in the absence of acceptable explanation of delay even though the delay is only 4 days, the same run against the prosecution especially when there ## **Crl.R.P.No.836 of 2002 14** is no evidence and materials to show that who was the custodian of the materials and documents after the same were produced in the Excise Range Office, Kunnamangalam on 17.1.97 till the same produced before PW5 on 21.1.97. Hence, it cannot be said that the prosecution has proved its case against the revision petitioner beyond reasonable doubt. 14. In the light of the above facts and circumstances and the discussions and in view of the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to establish the allegation against the accused beyond reasonable doubt and consequently, the benefit of doubt will go in favour of the accused. Therefore, the petitioner/accused is entitled to an acquittal extending the benefit of doubt and I do so. Consequently, the challenge against the conviction and sentence is upheld and the judgments of the trial court as well as the appellate court against, the revision petitioner are set aside. In the result, this revision petition is allowed setting ## **Crl.R.P.No.836 of 2002 15** aside the judgment dated 31.12.1998 in CC No.208/1997 of the Court of Judicial First Class Magistrate Court, Thamarassery and the judgment dated 7.11.2001 of the Sessions Court, Kozhikode in Crl. Appeal No.52/99 and the accused/revision petitioner is acquitted of all charges levelled against him and the bail bond if any, executed stands cancelled and he is set at liberty. The fine amount if any, deposited by the revision petitioner shall be released forthwith to him on an application made before the trial in this regard. **V.K.MOHANAN, JUDGE** pm/