Cheruvayi Mukundan v. State of Kerala (Crl. Appeal No.1835 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938** ## **CRL.A.No. 1835 of 2005 ( )** ## **---------------------------** **AGAINST THE JUDGMENT IN SC NO.541/2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY DATED 04-10-2005** **-------------------------------------** ## **APPELLANT(S)/ACCUSED :** **------------------------------------** **1. CHERUVAYI MUKUNDAN, S/O AMBOOTTY, CHERUVANCHERRY AMSOM, POOVATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT. (DIED)** **** 2ND APPELLANT IMPLEADED** **2. K.PREETHA, AGED 41 YEARS, W/O LATE MUKUNDAN, EKKALIL HOUSE, CHRUVANCHERRY AMSOM, POOVATHUR DESOM, THALASSERRY TALUK.** **** IS IMPLEADED AS 2ND APPELLANT AS PER ORDER DATED 30.03.2016 IN CRL.M.A. NO.1739/2016 IN CRL.A.NO.1835/2005.** **BY ADV. SRI. P.P. RAMACHANDRAN** ## **RESPONDENT(S)/COMPLAINANT :** **----------------------------------------------** **STATE OF KERALA ( EXCISE INSPECTOR, KUTHUPARAMBA), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **C.R.** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. Appeal No.1835 of 2005 ---------------------------------Dated this the 7[th] day of April, 2016** ## **J U D G M E N T** Can an appeal under Sec.374 Cr.P.C be continued after the death of the accused? This important question is raised in this appeal since Cheruvayi Mukundan, the accused in S.C. No.541 of 2001 was convicted by the Sessions Court, Thalassery for the offences punishable under Sec.8(2) of the Abkari Act. The charge against the accused is that on 18.08.1998 at 6.10 p.m., he was found with 10 litres of arrack on the side of the road at Cheruvanchery Amsom, Puvathur desom by the Excise Inspector, Kuthuparamba. He was arrested and the contraband articles were seized after preparing a mahazar, thereafter registered a crime. After completing investigation, the Excise Inspector, Kuthuparamba laid charge against the accused before the Judicial First Class Magistrate Court, Kuthuparamba. From there, the case was committed to Sessions Court, Thalassery and subsequently, it was made over to Additional Sessions Crl. Appeal No.1835 of 2005 2 Court (Adhoc-III), Thalassery. 2. In the trial court, prosecution examined PW1 to PW3 and marked Exts.P1 to P8. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec.313 of the Code of Criminal Procedure. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Sec.8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- (Rupees one lakh only) in default to undergo simple imprisonment for six months. Being aggrieved by that he preferred this appeal. 3. During the pendency of this appeal, on 08.11.2009 the appellant died. In the circumstances this court obtained a report from the Excise Inspector, Kuthuparamba. Along with the report, the Excise Inspector produced the death certificate of the appellant issued from the Registrar of Births and Deaths, Pattiam Grama Panchayath, which is marked as Ext.C1. Crl. Appeal No.1835 of 2005 3 Subsequently, wife of the appellant was impleaded as the 2[nd] appellant vide order dated 30.03.2016 in Crl.M.A. No.1739 of 2016. The principal point raised in support of the appeal is that after the death of the accused whether any abatement for the sentence of fine. On this question the common law maxim ''actio personlis moritur cum persona'' is of little use and answer to the question must be found in other provision of law. 4. The Criminal Procedure Code Sec.394 says about abatement of appeals which reads as follows; **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation- In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister.” Crl. Appeal No.1835 of 2005 4 A reading of Sec.394(2) says that every appeal against conviction shall abate on the death of the accused except an appeal from a sentence of fine. This section provides that an appeal from sentence of fine does not abate on the death of the appellant and the further proviso to the section enables any of the near relatives to obtain leave to continue the appeal. The 2[nd] proviso to Section 394(2) says that where the appeal is against the conviction and sentence of death or imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. The “near relative” means a parent, spouse, lineal descendant, brother or sister. 5. Apex Court in **Om Prakash v. State of Hariyana and Another [1980 SCC (Crl) 101]** held that “Section 394 provides that an appeal from sentence of fine does not abate on the death of the appellant and further proviso to the section enables any of the relatives Crl. Appeal No.1835 of 2005 5 to obtain leave to continue the appeal.” A three bench of the Apex Court in **State of Kerala v. Narayani Amma Kamala Devi (AIR 1962 Supreme Court 1530)** explained that revisional powers against the conviction can be exercised even after the death of the accused, in which paragraph 3 reads as follows: 3(a) The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. If, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for in S.431 of the Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. The High Court or the Court of Sessions cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine. Therefore, the principle point urged in this appeal is that, after the death of the appellant the criminal responsibility must die with the wrongdoer himself. With regard to the fine imposed by the court, the legal heirs of the deceased can continue with the appeal as stated under Sec.394(2) Crl. Appeal No.1835 of 2005 6 Cr.P.C. 6. The next argument advanced by the learned counsel appearing for the appellant is that there is inordinate delay of more than two years in starting investigation in this case and no reasons were stated by the investigating officer for that. The seizure mahazar prepared by the detecting officer was not produced along with the contraband article seized by him on 18.08.1998. The independent witnesses were not examined by the trial court to prove the alleged seizure of arrack. 7. The learned Public Prosecutor appearing on behalf of the 1[st] respondent contended that if the delay is purposeful, it will affect the prosecution case; but, if it is due to any other grounds, it can only be assumed as an irregularity committed by the investigating officer. An irregularity or illegality committed by the investigating officer cannot be treated as a ground for acquittal if other evidences are corroborating the prosecution case. 8. An abkari officer is defined under Sec.3(2) of the Abkari Act.“ Abkari Officer means the Commissioner Crl. Appeal No.1835 of 2005 7 of Excise or any officer or other person lawfully appointed or invested with powers under Sec.4 or 5.” According to Section 4 of the Abkari Act, the Government has the power to appoint officers to perform the acts and duties mentioned in Secs.40 to 53 of the Abkari Act. Under Sec.4(e), the Government has the power to appoint any subordinate officers of such classes with such designations, powers and duties under this Act as the Government may think fit. From the plain reading of the above sections, it is clear that at the time of seizure of any article or arrest of a person, the abkari officer has to follow the procedure under Sec.102 of the Code of Criminal Procedure. When an arrest and seizure under the Act is committed, the detecting officer has to follow the provisions of the Cr.P.C. if it is inconsistent with the Abkari Act. If he violates any of the provisions of the Cr.P.C., then the Court has to examine the effect of such violation. 9. In this context, I have considered whether there is any violation of Sec.102 of the Code and Sec.34 Crl. Appeal No.1835 of 2005 8 ## of the Abkari Act. Sec.34 of the Abkari Act reads as follows: “34. Offenders may be arrested and contraband liquor, vehicles, etc. seized without warrant :- (1) Any [Abkari Officer] Department may arrest without warrant in any public thorough fare or open place other than a dwelling house, any person found committing an offence punishable under this Act, and in any such thorough fare or public place may- (a) Seize and detain- (i) any liquor or intoxicating drug; (ii) any materials, still, utensils, implement or apparatus; (iii) any receptacle or package or covering; and (iv)any animal, cart, vessel or other conveyance, which he has reason to believe to be liable to confiscation under this Act; (b) search may person, animal, cart, vessel or other conveyance, package, receptacle or covering upon whom or in or upon which he may have reasonable cause to suspect any such liquor or intoxicating drug to be, or to be concealed. (2) The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), shall apply in so far as they are not inconsistent with the provisions of this Act, to all arrests searches and seizures made under this Act. A close reading of the above section shows that an abkari Crl. Appeal No.1835 of 2005 9 officer, while proceeding under Sec.34 of the Act the Abkari officer has to follow the provisions of the Cr.P.C. which are not inconsistent with the provisions of the Abkari Act to all arrest, searches and seizures. 10. The Apex Court in **State of Punjab v. Balbir Singh [2004 (3) KLT (SN107) C.No.148]** held that the provision of a statute creating public duties are generally speaking directory. In the light of Sec.34 of the Abkari Act and under Sec.102 of the Cr.P.C. the violation of the procedural instructions or non compliance of the provisions will not invalidate the seizure. The provisions of these two sections contain certain procedural instruction for strict compliance by the officers. If there is no strict compliance of the instruction, that by itself cannot render the act done by the officers invalidate, but it affect only the probative value of the arrest and seizure made by such officers. Therefore, strict compliance specified in the statute is the main point to be considered in this case. 11. The evidence of PW1 shows that on Crl. Appeal No.1835 of 2005 10 18.08.1998 at 6.00 p.m., he was conducting patrol duty and when he reached the place of occurrence, the appellant was found carrying a black can (MO1). He intercepted him and inspected the can in which, he detected 10 litres of arrack. In the presence of two independent witnesses he tasted the arrack and confirmed it as illicit arrack. He seized the contraband articles after preparing a mahazar. The independent witnesses present there attested the mahazar. From MO1, he took 180 m.l as sample and sealed it at the place of occurrence. The balance arrack was also sealed at the place of occurrence. He also affixed a label on the sample. The accused, witnesses and PW1 put their signature in it. Ext.P1 is the mahazar, Ext.P2 is the arrest notice and Ext.P3 is the arrest memo. Reaching at the excise office, he registered a crime. Ext.P4 is the crime and occurrence report. Accused was produced before the court with Ext.P5 remand application. Ext.P6 is the property list. The sample was forwarded to the chemical examiner's lab as per Ext.P7 forwarding note. Further Crl. Appeal No.1835 of 2005 11 investigation was conducted by PW3, Selvarajan. 12. PW2 admitted signature in Exts.P1 and P3 documents, but he did not see the seizure of MO1. He was declared hostile by the prosecution. PW3 completed investigation and laid charge before the Court. He obtained Ext.P8 chemical analysis report. As per Ext.P8, 18.48% of ethyal alcohol was detected in the sample. As per Ext.P8 it was received on 02.02.1999. But, he took investigation on 24.11.2000. PW1 produced MO1 on 19.08.1998. I have perused Ext.P1 which shows that it was produced before the court only on 29.12.2000. The reason for the delay was not stated by the investigating officer or the detecting officer. It is clear from Ext.P1 that the concerned Magistrate having jurisdiction has not been informed about the action taken by PW1 as per Sec.102(3) of the Cr.P.C. According to Sec.50 of the Abkari Act, every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation is completed, the abkari officer shall forward a report to the Magistrate empowered to ## Crl. Appeal No.1835 of 2005 12 take cognizance of the offence as a Police report, which is according to Sec.173(2) of the Cr.P.C. Upon receipt of a final report from the Abkari officer, the Magistrate shall inquire into the offence and commit to the court of sessions if the offence is exclusively triable by the court of sessions or to try the person thereof in the manner it is instituted upon a police report as provided under the Code of Criminal Procedure. 13. In this Context, the decision of the Supreme Court in **State of Andhra Pradesh v. P.V. Pavithran [AIR 1990 Supreme Court 1266]** held as follows: 8. The very nature of such offences would necessarily involve considerable time for unearthing the crimes and bringing the culprits to book. Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. 10. The assessment of the above factors necessarily vary from case to case. It would, therefore, follow that no general and wide proposition of law can be formulated that whenever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, would provide ground for Crl. Appeal No.1835 of 2005 13 quashing the First Information Report or the proceedings arising therefrom. 12. It follows from the above observations that no general and wide proposition of law can be formulated that wherever there is any inordinate delay on the part of the investigating agency in completing the investigation, such delay is a ground to quash the FIR”. 14. No explanation has been offered for this extraordinary delay in starting the investigation and sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, the entire report which afforded sufficient time to the prosecution to introduce improvements and embellishments and to set up a distorted version of the occurrence. This suspicion hardens into a definite possibility when the case made in court have no independent support. A perusal of the investigation conducted by PW3 shows that he has not given any care to comply with the directions under the statute. The delay of two years in conducting investigation create a doubt in the credibility of the prosecution case. Moreover, no independent corroboration to the alleged seizure. The ## Crl. Appeal No.1835 of 2005 14 Apex Court recently held that when the provisions of the statute are strict and the punishment is very high, more care and caution is necessary. Hence the provisions of the Abkari Act has to be interpreted in the strict sense. The trial court convicted the accused without considering the legal infirmities in connection with the seizure. However, the conviction and sentence under Sec.8(2) of the Abkari Act are set aside and accused is acquitted and set at liberty. If any amount is deposited by the accused in the trial court it shall be reimbursed to the 2[nd] appellant. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/12/04/2016 _P.A. To Judge_