Divakaran s/o Rarichan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 CRL.REV.PET NO. 3176 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT SC 470/2006 OF II ADDITIONAL SESSIONS COURT,KOZHIKODE ``` ``` CRA 200/2008 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III / II ADDITIONAL MACT, KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` DIVAKARAN S/o RARICHAN, AGED 47 YEARS, KARAPATTA PURAYIL HOUSE,KEDAVOOR AMSOM, CHAMAL DESOM,KOZHIKODE TALUK. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA INSPECTOR, THAMARASSERY,EXCISE RANGE,REP.BY THE, PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY P.P., SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 3176 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 3176 of 2010 ============================ Dated this the 5[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 470 of 2006 on the file of the Asst. Sessions Judge, Kozhikode alleging commission of offences punishable under Sections 8(1) and (2) of the Abkari Act. 2. The prosecution case is that on 08.09.2002 at about 11 a.m., when PWs 1 and 2, Excise Officials who were on patrol duty, inspected the house of the revision petitioner/accused on previous information, he was found to be in possession of 20 litres of illicit liquor in violation of the Abkari Act and Rules and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 7 and marked Exts P1 to P11 and identified MO1. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. The trial Court also allowed set-off. Crl.R.P. No. 3176 of 2010 :3: 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.200 of 2008 before the IIIrd Addl. Sessions Judge, Kozhikode which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 6. The first contention raised by the learned counsel for Crl.R.P. No. 3176 of 2010 :4: the revision petitioner is that going by the prosecution case, an information was received that illicit arrack is kept in the house of the accused/revision petitioner. Thereupon, Ext P6 search memo was prepared and sent to the Judicial First Class Magistrate Court, Thamarassery, and thereafter they reached the house at 11.30 a.m. and on search, a can having a capacity of 35 litres containing 20 litres of arrack was seized and the accused was arrested, and the sample was taken, sealed and labelled, and on reaching the office, a suo moto case was registered against the accused/revision petitioner. The revision petitioner contended that going by the evidence of PW1 detecting officer, while on patrol duty at 11.45 am, he got information from the mahazar witnesses that the accused/revision petitioner is dealing with illicit arrack in his house bearing No.1/200B and that the search memo was prepared and thereafter the revision petitioner’s house was searched and found out 20 litres of illicit arrack kept in 35 litres capacity plastic can. Therefore, going by the prosecution case, patrol duty was on 11.45 a.m. and on getting information the search memo was prepared. A perusal of Ext P6 search memo would reveal that the same was prepared at 10.45 a.m. i.e., Crl.R.P. No. 3176 of 2010 :5: almost an hour prior to the time when the information was received which is quite improbable. Further it could be seen that in Ext P1 arrest memo, the arrest was recorded at 11.30 a.m., whereas information was received only at 11.45 a.m. All these aspects will cast a doubt on the case put forward by the prosecution and therefore the revision petitioner is entitled for the benefit of doubt. 7. Yet another contention raised by the revision petitioner is that, there is an inordinate delay in completing the investigation. Going by the prosecution case, the occurrence was on 18.09.2002, but the complaint was filed only 06.02.2006 i.e., after a delay of almost four years, though the chemical analysis report was ready on 13.12.2003. The learned Counsel for the revision petitioner would submit that the delay is not explained by the prosecution and therefore the same is fatal to the case of the prosecution. PW6 is the investigating officer and when a specific question is put to him regarding the delay in filing the complaint, the only reply is that he took charge of the Thamarassery range only on 12.09.2005. In view of the same, I am of the opinion that the inordinate delay in completing the investigation and filing the complaint is not Crl.R.P. No. 3176 of 2010 :6: explained by the prosecution. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan_ Crl.R.P. No. 3176 of 2010 :7: _(supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. There is no Crl.R.P. No. 3176 of 2010 :8: explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 8. Yet another contention raised by the learned counsel for the revision petitioner is regarding non-compliance of the procedure contemplated in Section 53A of the Abkari Act. I find that no inventory and its certification by the magistrate is produced and marked on the side of the prosecution. This court in **Appu v. State of Kerala,2016 (4) KLT SN 71** has held that procedures prescribed under Section 53 A are mandatory in nature and failure to follow the procedure under Section 53A scrupulously would vitiate prosecution and for a successful prosecution, the procedures under Section 53A are to be followed. In view of the above, I find that there is noncompliance of Section 53A of the Act, the benefit of which should go in favour of the accused/revision petitioner. 9. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside Crl.R.P. No. 3176 of 2010 :9: the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** sbk/-