Dileep s/o Vamadevan v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** ## **CRL.A.No.370 OF 2007** **AGAINST THE JUDGMENT IN SC 615/2000 DATED 07-02-2007 OF ADDITIONAL SESSIONS COURT, FAST TRACK-III, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **DILEEP S/O.VAMADEVAN, MANAKUNNAVILA VEEDU,, CHANNAMANGALAM, POYYAKKADA, KODUVAZHANNOOR VILLAGE** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.32 OF 1998 OF EXCISE RANGE, CHIRAYINKEEZH).** **BY PUBLIC PROSECUTOR SRI.P.M.SUMODH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2020, THE COURT ON 16-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.370/2007 :2: ## **JUDGMENT** This is an appeal preferred under Section 374(2) of the Code of Criminal Procedure, challenging the correctness of the judgment of the learned Additional Sessions Judge, Fast Track-III, Thiruvananthapuram dated 07.02.2007 in S.C.No.615/2000. The appellant stood charged under Section 8(1) and (2) of the Abkari Act in Excise Crime No.32/98 of Excise Range, Chirayinkeezhu. The prosecution allegation is that on 28/07/1998 at 6:30 p.m. the appellant was found by CW4 C.P.Sebastian, Excise Inspector, Kattakkada Range, on the NagaroorKarate road near the Poyyakkada market, within the excise range, carrying five litres of arrack in a can, while the party was engaged in patrol duty; seeing the party when he was found moving away, he was intercepted, the liquor found in the can was tested by smelling and tasting; finding that it was arrack, he was arrested from the spot in the presence of other members of the Excise party and independent Crl.A.No.370/2007 :3: witnesses. After reaching back the Excise office, Occurrence Report No.32/1998 was registered under Section 8(1) and (2) of the Abkari Act and the appellant was produced before the Magistrate, along with property items with remand report, on the same day. After investigation, CW5 laid the charge sheet before the Judicial First Class Magistrate-II, Attingal who, after completing the procedural formalities, committed the case to the Sessions Court, Thiruvananthapuram, from where the case was made over to the trial court. The appellant was released on bail on 29/08/1998. 2. After hearing the counsel on both sides, the learned Sessions Judge framed charge for offence under Section 8(1) and (2) of the Abkari Act, read over and explained to him; he pleaded not guilty. He was defended by a counsel of his choice. 3. Three witnesses were examined on the side of the prosecution. PW1 is an independent witness, who attested the Ext.P1 seizure mahazar, PW2 is the Preventive Officer who accompanied CW4, who proved Exts.P2 to P7 documents. PW3 is the Excise Inspector who Crl.A.No.370/2007 :4: conducted the investigation and laid the charge. At the time of trial, CW4 the detecting officer was no more. On completion of examination of witnesses, when the appellant was examined under Section 313(1)(b) Cr.P.C., he denied all the incriminating materials and reiterated his innocence. According to him, while he was sleeping in his house, excise people and goons of one Manichan took him to the Excise office and slapped a false case against him. As the learned Judge found that the accused cannot be acquitted under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. But there was no oral evidence on his part. However, a case diary contradiction crept in the testimony of PW1 was marked on his side as Ext.D1. After hearing the counsel on both sides, by the impugned judgment, he was found guilty under Section 8(1) and (2) of the Abkari Act and was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for three months. That finding has been called in question in this appeal. 4. I heard Sri. S.Rajeev, the learned counsel for the appellant Crl.A.No.370/2007 :5: and also Sri.P.M.Sumodh, the learned Public Prosecutor. The trial court records were also perused. 5. Though various grounds have been urged in support of the appeal, when heard, the learned counsel has confined to three grounds. According to him, the trial court has disbelieved the independent witness PW1 who tried to support the prosecution case and a finding of conviction has been reached basing on the solitary evidence of PW2, the Preventive Officer. The trial court ought not to have believed the evidence of PW2 alone to convict the appellant which is bad. Secondly, he said that there is long delay in the investigation which has caused prejudice to the appellant. Even though the incident had allegedly happened on 28/07/1998, the witnesses were examined after long lapse of time on 04/02/2000 and 12/02/2000. Thirdly, he pointed out that Ext.P1 seizure mahazar, Ext.P5 property list and Ext.P6 forwarding note do not contain the seal of the detecting officer and, therefore, there is no guarantee that the sample alleged to have been collected from the place of occurrence had reached the laboratory for basing upon the Crl.A.No.370/2007 :6: issue of Ext.P7 certificate. In this connection, he also placed reliance on the decisions in **Unnikrishnan Nair v. State of Kerala [2020 (3) KHC 455]** and **Balachandran v. State of Kerala [2020 (3) KHC 697]** . 6. On the other hand, the learned Public Prosecutor pointed out that there is no such legally acceptable proposition that investigation conducted after about two years would cause prejudice to the accused. The detecting officer was no more at the time of trial and that was how PW2 alone could be examined from the side of the official witnesses to prove the seizure and arrest. PW2 has given convincing evidence before the court and there is absolutely no hazard in relying on such solitary evidence to convict the accused. Relying on Ext.P7 he said that the seal found on the samples tallied with the sample seals provided and, therefore, it can safely be presumed to say that the samples collected from the contraband was subjected to examination by the Chemical Examiner. 7. As rightly pointed out by the learned Public Prosecutor, there is no such proposition that the evidence of a solitary witness, who Crl.A.No.370/2007 :7: is an official, should not be relied upon to proceed against the accused, unless corroborated through independent sources. If such a testimony is reliable, convincing and free from embellishments and improvements, no doubt, there is no hazard in relying on the same for proceeding against the accused. Here, though the independent witness PW1 had supported the prosecution case, there were reasons for the learned Sessions Judge to eschew his evidence, especially in the light of the Ext.D1 Case Diary contradiction, to doubt his very presence at the time of detection of the crime and the arrest of the appellant. The detecting officer, who was cited as CW4, is no more and thus the prosecution had to rely on the oral testimony of PW2 the Preventive Officer, who accompanied the Excise Inspector in detecting the crime and preparing the seizure mahazar and other documents. He proved all the material documents to support the prosecution case. Defence has no case that he has any previous acquaintance with the appellant; for that reason, no malice or ill will can be attributed against him for giving a false testimony against the appellant. Therefore, I do not find any harm in the learned Judge placing implicit reliance on the testimony of PW2 Crl.A.No.370/2007 :8: and other material circumstances. 8. The second argument that, prejudice has been caused to the appellant owing to delay in the investigation and laying the charge sheet, also does not inspire confidence. It is true that, though the alleged crime was committed on 28/07/1998, the investigation was conducted during February 2000 and the charge sheet was laid only on 28/03/2000, after more than 1½ years of the detection of the crime. As pointed out by the learned Public Prosecutor, at the time of trial the detecting officer had died and there might have been change at the helm of affairs of the Excise range and that might have led to the delay in the investigation. That itself is not a reason for disbelieving the entire prosecution case. 9. Apart from it, the role of an investigating officer in such a crime is very limited. After all, major part of the investigation must have been deemed complete, immediately after seizing the items and arresting the accused, following the procedural formalities, taking the samples and forwarding the same for chemical report, etc. These Crl.A.No.370/2007 :9: matters have been done within no time. It has also come out that the accused, along with the material objects were produced before the Magistrate post-haste. The fact that the witnesses were examined only in February 2000, therefore, is not a big issue to belie the prosecution case. 10. All the same, the third argument raised by the learned counsel, having regard to the documents made available before the Court, is really formidable. As rightly pointed out by the learned counsel, Ext.P1 seizure mahazar, Ext.P5 property list and Ext.P6 forwarding note do not contain the sample seal of the detecting officer. All the same, Ext.P7 chemical examination report indicates that the seal on the bottle was in tact and found tallied with the sample seal provided. But such a sample seal is not before the court now. It is the definite case of the defence that such a sample seal was not provided. Merely looking at Ext.P7, in the light of the said argument, one cannot presume that the sample seal was provided in the original forwarding note. Of course, when it was found that the copy of the forwarding note Crl.A.No.370/2007 :10: did not bear the sample seal, it was open to the prosecution to call for the original forwarding note from the chemical examiner's laboratory and convince the court that the original bore the sample seal. The argument that the original did not bear the sample seal is a rebuttable presumption and thus the presumption could have been rebutted by the prosecution. Here that has not been done. Even though that argument was not seen taken before the trial court, the fact that such a lacuna is in the prosecution case goes to the very root of the matter. It is the consistent view of this Court, as cited through the authorities by the learned counsel that if such a seal is absent in the forwarding note, the very origin of the allegation that the contraband was an offensive item is liable to the doubted. If only it is proved that the contraband was an offensive article, the offence alleged against the appellant will stand judicial scrutiny. That could be proved only if it is established that the very sample was examined at the chemical examination laboratory. As it is seen that there was no specimen seal in the forwarding note, such a lacuna will remain in the prosecution case, the benefit of doubt of which should be given to the appellant. Crl.A.No.370/2007 :11: 11. That means, for the third reason urged by the learned counsel, it cannot be concluded beyond doubt that the item seized from the appellant was an offensive article so as to attract Section 8(1) and (2) of the Abkari Act. Thus the appellant is entitled to get the benefit of doubt. 12. In the above view, the appellant is entitled to be acquitted. Granting benefit of doubt, he is found not guilty and is acquitted. The bail bond is cancelled. Fine, if any, realised shall be refunded. The appeal is allowed as above. Sd/- **K. HARIPAL JUDGE** okb/14/07/2020 ///True Copy/// P.S. to Judge