Divakaran v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940 CRL.A.No. 1540 of 2007 SC 166/2001 of ADDL.SESSIONS COURT-I,MAVELIKKARA ## APPELLANT(S)/ACCUSED DIVAKARAN, S/O RAMAN, KALATHIL VEEDU, MALAMEL KOTTU MURI,, CHEPPAD VILLAGE. BY ADVS.SRI.S.MOHANAN SRI.M.V.THAMBAN SRI.R.REJI ## RESPONDENT(S)/RESPONDENT: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,, REPRESENTING THE EXCISE INSPECTOR,, KARTHIKAPPALLY, ALAPPUZHA DISTRICT. BY PUBLIC PROSECUTOR, SHRI E C BINEESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.1540 of 2007 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of June 2018 ## JUDGMENT The appellant is the accused in S.C. No.166 of 2001 on the files of the court below. 2. The prosecution allegation is that on 19.11.98 at about 5.30 p.m., the appellant was found in possession of four litres of arrack in contravention of the provisions of the Abkari Act. The offence was detected by PW1 and party. 3. PW1 was the Excise Inspector of Karthikappally Excise Range during the relevant period. On 19.11.1998 at about 5.30 p.m., the appellant was found carrying a plastic Crl.A.1540/07 : 2 : carry bag. On getting suspicion, PW1 intercepted the appellant and inspected the content inside the bag. Then it was found that the bag contained six bottles. Five bottles, each bottle having a capacity of 750 ml each, contained full of liquor. The other bottle contained only 250 m.l. of liquor. When PW1 tested the same by smelling and tasting, PW1 and party were convinced that the content inside the bottles was arrack. The appellant was arrested from the spot and the contraband was seized as per Ext.P1 mahazar. The sample was also drawn from the contraband. Thereafter, PW1 and party reached the police station along with the accused, contraband and the contemporary records and thereafter, he registered the crime. PW1 also conducted the investigation in this case. The records were Crl.A.1540/07 : 3 : verified by PW2 and thereafter, PW2 filed the final report before the court. 4. PW3 and PW4 were independent witnesses examined by the prosecution to prove the occurrence. However, they did not support the prosecution case. They even did not admit their signature in Ext.P1 mahazar and Ext.P2 arrest memo. 5. PW5 was the Excise Guard, who accompanied PW1 during the relevant period. He supported the evidence of PW1 in all material aspects. 6. The learned counsel for the appellant has argued that even though Ext.P1 was prepared on 19.11.1998, the same was produced before the court only 1.6.2000 and in the said circumstances, the conviction and sentence passed Crl.A.1540/07 : 4 : by the court below cannot be sustained. It has been further argued that even though the arrest memo was allegedly prepared on 19.11.1998, the same was also produced before the court only on 1.6.2000 and in the said circumstances, it has to be held that there was no proper arrest of the appellant. 7. It appears from Ext.P1 Mahazar that the said mahazar was produced before the court only on 1.6.2000 along with the final report. It is not discernible as to why Ext.P1 was not produced before the court at the time when the accused was produced before the court. The seizure mahazar is a vital document showing the seizure of the contraband and hence, the immediate production of the scene mahazar before the court is necessary to prove the Crl.A.1540/07 : 5 : veracity of the prosecution case. In this case, there was long and unexplained delay in producing Ext.P1 before the court. It is also to be noted that Ext.P2 arrest memo was also produced before the court only on 1.6.2000 along with the final report. It is not discernible as to why Ext.P2 could not be produced before the court when the appellant was produced before the court. Ext.P1 mahazar does not mention that the arrest memo was prepared at the time of arrest of the appellant by PW1. This also casts doubt with regard to Ext.P2 memo prepared by PW1. PW3 and PW4 had totally disowned their signature in Ext.P2 and P1. I have gone through the signature of PW3 and PW4 in Ext.P1 and I find that their signature in Ext.P1 is drastically different from their signature in Ext.P2. Their signature is Crl.A.1540/07 : 6 : also different in their depositions. The arrest memo is a vital document which proves the arrest of the accused. Therefore, the non-production of the arrest memo before the court immediately after the arrest of the accused is fatal to the prosecution case, particularly when Ext.P1 does not whisper anything about the preparation of Ext.P2 arrest memo by PW1 at the time of arresting the appellant. The incident in this case was on 19.11.1998. However, the final report was filed before the court only on 1.6.2000 after completing the investigation. No explanation was given by PW2 as to why there was inordinate delay in filing the final report. This Court in Krishnan H. v. State [2015(1) KHC 822] held that the inordinate delay in conducting the investigation, in the absence of Crl.A.1540/07 : 7 : explanation, is fatal to the prosecution case. No explanation has been given as to why there was delay in conducting the investigation in this case. Therefore, the same is also fatal to the prosecution case. In view of the above reasons, the appellant is entitled to benefit of doubt. Consequently, the conviction and sentence passed by the court below cannot be sustained. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged. sd **B.SUDHEENDRA KUMAR, JUDGE** _dl/.8.6.18 // True copy // PA to Judge_