CRL.A.No.349 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936** **CRL.A.No. 349 of 2004 ( )** **--------------------------** **AGAINST THE JUDGMENT IN SC 433/2000 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 06-12-2003.** ## **APPELLANT(S)/ACCUSED:** **--------------------** **BALARAMAN S/O. KANNAN, MANCHOLAKKUMEETHAL HOUSE, AVIDANNALLORE AMSOM, POONATH DESOM OF KOYILANDY TALUK.** **BY ADV. SRI.SUNNY MATHEW.** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, ATHOLI POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl. Appeal No.349 of 2004** **-----------------------------------------------Dated this the 4[th] day of April, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Challenge raised by the appellant in this appeal is against the conviction and sentence imposed on him under Section 55(a) of the Abkari Act by the Additional Sessions Judge (Adhoc II), Kozhikode in S.C No.433/2000. Learned trial judge found that the appellant is guilty of the said offence. The allegation made by the prosecution against the accused is that on 14-05-1999 at about 23.30 hours, the accused was found transporting 35 litres of arrack in a plastic can, which was kept on the back side of the auto rickshaw driven by him. He was driving through a public road and the police intercepted the vehicle and conducted the detection. After investigation, a charge was laid and it was committed to the Court of Sessions. The case was tried by the learned Additional Sessions Judge. PW's 1 to 5 testified on the side of the prosecution. Exts.P1 to P10 and MO1 were marked ## **Crl. Appeal No.349 of 2004 2** on the side of prosecution. Ext.D1 is marked on the side of defence. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Oral evidence in this case supported the prosecution case to a great extent. PW1 was the Police Constable attached to Atholi Police Station. He was in the party led by PW5. PW1 testified that at about 11.30 p.m on 14-05-1999 they cited the auto rickshaw driven by the accused. When it was examined, they found a can kept on the back side of the rear seat of the auto rickshaw. It was having about 35 litres capacity. On examination, it was found that illicit arrack was transported in the can. The accused was arrested. Two bottles each having a volume of 375 ml were taken as samples from the contraband. It was properly sealed. Identity of the accused was established. After arresting the accused and preparing material documents, **Crl. Appeal No.349 of 2004 3** the Officers and the accused went to the Police Station and a crime was registered. PW1 in spite of tough cross examination adhered to the prosecution case. His evidence is credible. PW5 is the detecting officer. He along with party was conducting highway patrolling on 14-05-1999. At 23.30 hours, he found the auto rickshaw driven by the accused and it was intercepted. On verification, it was found that MO1 can was kept inside the auto rickshaw. On opening MO1 can, it could be seen that it was illicit arrack. The accused was arrested for transporting illicit arrack. Two bottles apiece containing a volume of 375 ml were taken as sample. Ext.P1 mahazar was prepared from the place of occurrence. Thereafter, the accused and the contraband were taken to the Police station and a crime was registered. PW5 proved the arrest memo Ext.P8 and inspection memo Ext.P9. Remand report relating to the accused is Ext.P10. PW5 identified the accused from the dock. Property list Ext.P5 was ## **Crl. Appeal No.349 of 2004 4** submitted by PW5. The case was investigated by one officer having name Balakrishnan. He was not examined by the prosecution. Although PW5 was subjected to strict cross examination relating to the detection of offence, his testimony remains credible. It derives support from the testimony of PW1 and all the documents prepared contemporaneous to the incident. It can be seen that the evidence tendered by the prosecution witnesses and the documents produced sufficiently prove the detection of the offence and involvement of the accused in the crime. 4. However, a question was specifically put to PW5 as to what was the reason for producing the contraband and the sample bottles before the court only on 03-06-1999, in spite of the fact that the detection was on 14-05-1999. Learned counsel for the appellant contended that 19 days delay in producing the contraband has not been properly explained by any of the **Crl. Appeal No.349 of 2004 5** officers. It is also contended that there is no satisfactory explanation discernible from any of the documents produced. Ext.P7 property list shows that though it is signed on 15-051999, it was produced before the learned Magistrate only on 0306-1999. Learned Public Prosecutor submitted that this aspect was considered by the trial court and found that there is no irregularity. But that submission cannot be countenanced in view of the binding precedent of this court in _**Ravi v. State of Kerala and Another (2011(3) K.L.T 353).**_ It has been laid down by this court that the seizure of contraband should be intimated to the court forthwith. In this case, it can be seen that the sending of First Information Report promptly to the court could be taken as compliance of reporting the recovery of contraband forthwith. However, the other observation in _**Ravi's**_ case (supra) has been violated in this case. It has been held therein that the prosecution is duty bound to prove that the contraband allegedly recovered ## **Crl. Appeal No.349 of 2004 6** from the possession of the accused reached the chemical laboratory in a tamper proof condition. It is also observed therein that the prosecution should proved beyond reasonable doubt that there was no possibility of tampering the sample taken or meddling with the property before it reached the chemical laboratory. In this case, neither PW1 nor PW4, or the officer, who laid the charge sheet, has a case that the contraband was safely kept by them for 19 days. In fact, PW5 would depose that he has no reason for not producing the contraband forthwith before the court. Therefore, I find that even though the detection of the offence was properly proved, the investigating officers failed to comply with the procedural formalities promptly which alone is the cause for finding the case in favour of the accused. I find that the benefit arising out of flaw in the procedure adopted by the Investigating Officer should enure to the benefit of the accused. **Crl. Appeal No.349 of 2004 7** In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in S.C No.433/2000 on the file of the Additional Sessions Judge (Adhoc II), Kozhikode is hereby set aside. The appellant shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge