Chelli v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937 CRL.A.No. 2215 of 2006 --------------------------JUDGMENT IN SC 294/2005 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD DATED 17-10-2006 APPELLANT/ACCUSED: -------------------- CHELLI, S/O. SANKARAN, KILIKKUNNUPARAMBIL, PULAPPATTA VILLAGE, AZHIYANNUR DESOM, OTTAPALAM TALUK. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE RANGE OFFICE, CHERPULASSERY. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 2215 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 10[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Palakkad, for the offence under Section 8 (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo rigorous imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, CRA 2215/2006 2 Cherpulassery, and his party were on patrol at Azhiyannur in Pulappetta Village at about 7.30 p.m.on 5.10.1998. While so, the appellant was seen going, carrying a 2.5 litre black jerrycan. Entertaining a suspicion, the excise party fastly followed him and stopped him there. On examining the jerrycan carried by the appellant, 2 litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P1 Arrest Memo. The jerrycan containing arrack was seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. PW1 had drawn 180 ml. of arrack as sample in a 180 ml. bottle for the purpose of subjecting the same to chemical analysis. The sample bottle and the jerrycan containing bulk of arrack were sealed and labelled. Thereafter, PW1 and his party reached the Excise Range Office, Cherpulassery, with the appellant and the contraband. PW1 registered Crime No. 32 of 1998 of that Range Office in respect of the occurrence. Ext.P3 is CRA 2215/2006 3 the Crime and Occurrence Report thus prepared by PW1. He had produced the appellant, contraband and the records before the Judicial First Class Magistrate's Court, Ottapalam. Ext.P4 is the List of Property and Ext.P5 is a copy of the Forwarding Note. Ext.P6 is the Location Sketch showing the place of occurrence. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The investigation of the case was conducted by PW5, the Circle Inspector of Excise, Excise Circle Office, Ottapalam. He had 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, Palakkad, and, from there, it was made over to the Assistant Sessions Court, Ottapalam. Later, the case was transferred to the Additional Sessions Court (Ad hoc)III, Palakkad. The court below framed a charge against the CRA 2215/2006 4 appellant alleging the offences under Sections 58 and 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 5 and marked Exts.P1 to P7 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The appellant was not found guilty of the offence under Section 58 of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found in possession of 2 litres of arrack in a jerrycan at about 7.30 p.m. on 5.10.1998 and PW1 arrested him then CRA 2215/2006 5 and there preparing Ext.P1 Arrest Memo and seized the contraband under Ext.P2 Seizure Mahazar in the presence of witnesses. So, Ext.P2 Seizure Mahazar and Ext.P1 Arrest Memo were prepared by PW1 contemporaneously. Names of witnesses are shown in Ext.P2 Seizure Mahazar. Therefore, there was no difficulty at all for PW1, the Detecting Officer, to secure witnesses for the arrest and give their names in the Arrest Memo. But, no witness is there in Ext.P1 Arrest Memo. Similarly, the arresting officer had not issued an Intimation of Arrest as required by law. After examining the records of the case, this Court is satisfied that PW1 had not complied with the directions issued by the Honourable Supreme Court of India in **D.K. Basu v. State of West Bengal (AIR 1997 SC 610).** The significance of preparing an Arrest Memo at the time of arrest and complying with the other directions issued by the Honourable Supreme Court in **D.K.Basu's case** (supra) has been considered by this Court in **Ramankutty v. Excise** CRA 2215/2006 6 ## **Inspector (2013(3)KHC 308)** and has held as follows: “7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in _D. K. Basu v. State of West Bengal_ . The specific case of the prosecution is that the Revision petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case CRA 2215/2006 7 has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in _D. K. Basu's case_ . It is apposite to have a look at the said directions of the Supreme Court which read as follows: “That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, CRA 2215/2006 8 shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.” The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum or arrest, beyond reasonable doubt.” 6. In the case on hand also, in the facts and circumstances, PW1 had not complied with the mandatory directions issued by the Honourable Supreme Court in **D.K.Basu's case** (supra). Therefore, the factum of arrest is rendered doubtful and it is fatal to the prosecution case. CRA 2215/2006 9 7. It is the prosecution case that PW1 had drawn 180 ml. of arrack in a bottle as sample from the bulk of arrack contained in the jerrycan and the sample bottle as well as the jerrycan containing arrack were sealed. The sample of the seal used by PW1 for sealing the sample bottle and the jerrycan containing arrack is not given in Ext.P2 Seizure Mahazar. PW1, the Detecting Officer, and PW2, the Excise Guard claimed to have accompanied PW1 at the time of detecting the offence, have deposed before the court that the sample bottle and the jerrycan containing arrack were sealed. The jerrycan containing arrack was identified and marked as MO.1. It is in the evidence of PW1 itself that such a seal claimed to have been affixed on MO.1 was not seen on MO.1. Along with this another aspect also has to be considered. 8. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample CRA 2215/2006 10 and the sample of liquid contained 11.75% by volume of ethyl alcohol. It is also certified in Ext.P7 that the seal on the packet was intact and found tallied with the sample seal provided. This certificate contained in this document raises a question. Whether the seal affixed on the sample bottle was compared with the sample impression of that seal by the Chemical Examiner or the seal affixed on the packet containing the sample bottle was compared with the sample seal. The Investigating Agency does not have a case that they had produced the sample bottle affixed with the seal of the Detecting officer in a packet affixed with the same seal on it. Ext.P5 is a copy of the Forwarding Note. The sample is not described as containing in a packet in this document. Therefore, presumably, the Chemical Examiner compared the seal on the packet with the sample of that seal provided from the court as the sample was sent in the packet from the court. No other meaning can be attached to the certificate that the seal on the packet was intact and found CRA 2215/2006 11 tallied with the sample seal provided. If that be so, there is no assurance that the Chemical Examiner examined really the sample collected from the contraband allegedly seized from the appellant. Therefore, Ext.P7 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal CRA 2215/2006 12 Procedure, 1973(Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the Investigating Agency in this case. No explanation was also offered for happening so. The alleged occurrence in this case was on 5.10.1998. PW1, the Detecting Officer, was a competent officer to conduct the investigation. But, he had not conducted the investigation. He had not given any explanation for not conducting the investigation by him. PW5, the Circle Inspector of Excise, Excise Circle Office, Ottapalam, had conducted the investigation of the case. It is in his evidence that he had investigated the case in 2004. He had not offered any explanation for the delay that occurred in CRA 2215/2006 13 conducting the investigation of the case. 10. Ext.P7 Certificate of Chemical Analysis dated 16.11.2000 has been received by the court on 19.2.2001. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P7. But, the Investigating Agency had taken more than three years and 4 months for submitting the Final Report before the court after the receipt of Ext.P7 by the court. There is no dispute with regard to the fact that the Final Report was submitted before the court only on 6.7.2004. The inordinate delay that occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of** CRA 2215/2006 14 **Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. PWs.1 and 2, the official witnesses, alone supported the prosecution case. PWs.3 and 4 were cited and examined by the prosecution as independent occurrence witnesses for proving their case of occurrence. But, they have not supported the prosecution version of occurrence. Their evidence is of no use for the prosecution for proving their case. Ext.P6 is a rough Location Sketch showing the place of occurrence prepared by PW5, the Investigating Officer. He himself admitted that the place of occurrence was not shown to him by any witnesses, but prepared merely based on Ext.P2 Seizure Mahazar. Therefore, Ext.P6 cannot be accepted as giving a true picture of the Scene Mahazar where the offence had allegedly taken place. What was the reason for not preparing a Scene Mahazar showing CRA 2215/2006 15 the place of occurrence with the help of occurrence witnesses? There is no answer. When all the foregoing facts are considered, it is totally unsafe to convict the appellant for a serious offence under Section 8(2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 11. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to be acquitted of the offence under Section 8(2) of the Abkari Act. 12. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 2215/2006 16