CRL.A.No.961 of 2006

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937 CRL.A.No.961 of 2006 -----------------------AGAINST THE JUDGMENT IN SC 473/2003 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD DATED 27-04-2006 ----------- APPELLANT/ACCUSED: ------------------------- VASU, S/O.PARAN, AGED 51 YEARS, KALLIDUMBIL VEEDU, VALLAPUZHA DESOM VALLAPPUZHA VILLAGE, OTTAPPALAM TALUK PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN RESPONDENT/COMPLAINANT AND STATE: ----------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.961 of 2006 -----------------------------------------------Dated this the 1[st] day of February, 2016 ## **JUDGMENT** 1. kThe 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 two years and to pay a fine of 1₹ lakh and, in default of payment of fine, to undergo simple imprisonment for three months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant submitted that the appellant expired after filing this appeal. The report of the Excise Inspector in charge, Excise Range Office, Pattambi, and the copy of the Death Certificate produced along with the memo filed by the learned Public Prosecutor confirmed the death of the appellant on 01-06-2006. 3. The near relatives of the appellant did not file any Crl. Appeal No.961 of 2006 -2- application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, Pattambi, and his party were on patrol at Vallapuzha in Vallapuzha village at about 5.30 p.m. on 08-11-1999. While so, the appellant was seen coming carrying M.Os.1 and 2 jerrycans of five litre each in his hands. The excise party stopped him there. On examining the jerrycans carried by him, full of arrack was found in them. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P1 Arrest Memo. Both the jerrycans containing arrack were seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. Since the arrack contained in both the jerrycans was found to be similar, PW1 had drawn 300 ml. of arrack as sample from Crl. Appeal No.961 of 2006 -3- one of the jerrycans in a 375 ml. bottle. The sample bottle as well as the jerrycans were sealed and labelled. Thereafter, the excise party reached the Excise Range Office, Ottapalam, with the appellant, contraband and the records and PW1 registered Crime No.21 of 1999 of that Range Office. Ext.P3 is the Crime and Occurrence Report thus drawn by PW1. He had produced the properties before the Judicial First Class Magistrate's Court, Pattambi, along with Ext.P4 List of Property. He has also submitted the Forwarding Note before the court for subjecting the sample to chemical analysis. Ext.P5 is a copy of that Forwarding Note. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The investigation of the case was taken over by PW4, the Circle Inspector of Excise, Ottapalam, as per the order issued by the Assistant Excise Commissioner, Palakkad. He had gone to the place of occurrence and inspected the same. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Crl. Appeal No.961 of 2006 -4- Report before the court. 5. 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. Subsequently, it was transferred to the Additional Sessions Court (Ad hoc)-III, Palakkad. The court below framed a charge against the appellant alleging the offence under Section 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P6 and M.Os.1 and 2 on their side. Ext.D1 was marked on the side of the defence through PW1. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence except marking Ext.D1 as aforesaid. 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. He was heard on the question of sentence and imposed the Crl. Appeal No.961 of 2006 -5- sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found in possession of 10 litres of arrack in two jerrycans at about 5.30 p.m. on 08-11-1999 and PW1 had arrested him then and there and the contraband was seized under Ext.P2 Seizure Mahazar. The investigation of the case was conducted by PW4, the Circle Inspector of Excise, Pattambi. He had questioned the witnesses on 25-12-2002 and 10-01-2003. After completing the investigation, he had submitted the Final Report before the court on 10-07-2003. Therefore, the delayed questioning of witnesses and the delayed submission of the Final Report before the court are writ large. What was the reason for such delayed investigation and delayed submission of the Final Report? No explanation has been offered by the prosecution through any of the official witnesses examined in this case. Section 50 of the Abkari Act deals with investigation and submission Crl. Appeal No.961 of 2006 -6- 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 subsection (2) of section 173 of the Code of Criminal 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 investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 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. In the case on hand, the alleged occurrence was on 08-11-1999. Ext.P6 Crl. Appeal No.961 of 2006 -7- Certificate of Chemical Analysis dated 16-09-2000 had been received by the court on 29-12-2000. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P6. But, the investigating agency had taken more than two years and seven months for submitting the Final Report before the court after the receipt of Ext.P6 by the court. This inordinate delay 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)** . 7. The right to a speedy trial is a constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of 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 Crl. Appeal No.961 of 2006 -8- investigation of the case and submitting the Final Report before the court. When all these facts are considered, this Court is of the view that the appellant is entitled, at least, to the benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. 9. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by him shall stand cancelled. Since the appellant expired after filing the appeal, no further orders are required. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.961 of 2006 -9-