E.S. Sudhish v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **THURSDAY, THE 26TH DAY OF JUNE 2014/5TH ASHADHA, 1936** ## **CRL.A.No. 602 of 2004** ## **--------------------------** **AGAINST THE JUDGMENT IN SC 357/2001 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 17-03-2004** ## **APPELLANT/IST ACCUSED,:** **E.S.SUDHISH, S/O. SHIVARAMAN, EDASSERI VEEDU, ARAKKATHATHU, CHITTARIKKAL.** ## **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/COMPLAINANT.:** **STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM REPRESENTING THE S.I.OF POLICE CHITTARIKKAL POLICE STATION.** ## **BY PUBLIC PROSECUTOR SHRI C.K. JAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CRL.A. NO. 858 OF 2004 ON 26-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A.Nos.602 & 858 of 2004 = = = = = = = = = = = = = = = = = = = Dated this the 26[th] day of June, 2014 ## **JUDGMENT** The appellant in Crl.A.No.602 of 2004 is the first accused and the appellant in Crl.A.No.858 of 2004 is the second accused in S.C.No.357 of 2001 on the files of the Additional Sessions Court (Adhoc)-I, Kasaragod. They were convicted by the court below for the offence under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each and, in default of payment of fine, to undergo rigorous imprisonment for six months each. The appellants challenge the conviction and sentence so passed by the court below, in this appeal. CRA Nos.602 & 858/2004 2 2. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Chittarikkal Police Station, and his party, on getting information that illicit arrack was being sold at Narkkilakkad Town, left for Narkkilakkad and stopped their jeep at Kottamala, at about 9 p.m.on 13.7.2000. While so, the appellant in Crl.A.No. 858 of 2004 was seen coming carrying a plastic bag and the appellant in Crl.A.No.602 of 2004 was seen coming carrying a big shopper. They were stopped there by the police party. While so, the appellant in Crl.A.No.858 of 2004 ran away leaving the plastic bag there. On examining the big shopper and the plastic bag, 25 bottles of 375 ml. size, each containing foreign liquor viz. King George Premium Grape Brandy, were seen in them. Therefore, PW3 arrested the CRA Nos.602 & 858/2004 3 appellant in Crl.A.No.602 of 2004 then and there. He had taken two bottles each from the big shopper and the plastic bag as samples and sealed them. He had seized the big shopper with the bottles, plastic bag with the bottles and the samples under Ext.P3 Seizure Mahazar in the presence of witnesses. He went to Chittarikkal Police Station with the appellant in Crl.A.No.602 of 2004 and the contraband items and registered Crime No.128 of 2000 of that Police Station. Ext.P4 is the F.I.R. thus drawn by PW3. He had produced the appellant in Crl.A.No.602 of 2004 and the records before the court on 14.7.2000. He had also produced the properties before the court. He had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. PW4, the Sub Inspector of Police, Chittarikkal Police Station, completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Hosdurg, against CRA Nos.602 & 858/2004 4 the appellants alleging the offence under Section 55(a) of the Abkari Act. 4. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. Later, it was withdrawn and transferred to the Additional Sessions Court (Adhoc)-I, Kasaragod. The court below framed a charge against the appellants. The appellants pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P6 and MO.1 series to MO.4 on their side. The appellants were questioned under Section 313 of Cr.P.C. They had denied the incriminating circumstances shown against them. The defence had examined DW1 and marked Exts.D1 and D2. The court below, after considering the matter, found both the appellants guilty of the offence under Section 55(a) of the Abkari Act and convicted them thereunder. They were heard on the question of sentence CRA Nos.602 & 858/2004 5 and imposed the sentence on them. 5. The appellants have raised various contentions challenging the conviction and sentence passed against them. It is the prosecution case that the appellants were found in possession of foreign liquor and that was seized by PW3 at about 9.00 p.m. on 13.7.2000 under Ext.P3 Seizure Mahazar. But, he had produced the liquor and its samples thus seized along with the List of Property only on 19.7.2000. He admitted, while he was in the witness box, that these properties reached the court only on 19.7.2000. He had produced the other documents on the next day viz. 14.7.2000. Then, what was the reason for not producing the liquor along with the samples on 14.7.2000? PW3 did not offer any explanation for the inordinate delay that occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala (2011(3)KLT 353)** laid down that there should be CRA Nos.602 & 858/2004 6 explanation for the delay when there is delayed production of the property. A learned Single Judge of this Court in **Ramankutty v. Excise Inspector(2013(3)KHC 308)** found, for the reasons stated in that judgment, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, PW3 did not offer any reason explaining the delay in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution in this case and on that ground alone the appellants are entitled to an order of acquittal. 6. Where the properties were kept after they were seized by PW3 on 13.7.2000 till they were produced before the court on 19.7.2000? No evidence in that regard has been adduced by the prosecution through the official witnesses examined by them. Moreover, there is no evidence as to in whose custody the properties were kept CRA Nos.602 & 858/2004 7 during the said period. In Narayani v. Excise Inspector (2002 (3)KLT 725), a learned single Judge of this Court observed as follows: “......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out........” Therefore, in that case, the accused was found to be entitled to benefit of doubt. In the case on hand also, such a benefit has to be extended to the appellants. CRA Nos.602 & 858/2004 8 7. For the foregoing reasons, the impugned conviction and sentence passed by the court below against the appellants are liable to be set aside. They are entitled to be acquitted of the offence under Section 55(a) of the Abkari Act. 8. In the result, the conviction and sentence passed against the appellants by the court below are set aside. The appellants are acquitted of the offence under Section 55(a) of the Abkari Act. They are set at liberty. The bail bonds executed by them shall stand cancelled. The amount, if any, deposited by the appellant in Crl.A.No.858 of 2004 shall be returned to him. These appeals are allowed. **Sd/BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. TO JUDGE CRA Nos.602 & 858/2004 9