George S/o Kurian v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936 CRL.A.No. 68 of 2004 (A) ------------------------- AGAINST THE JUDGMENT IN SC 16/2002 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA (CP 71/2001 of J.F.C.M. COURT IDUKKI) APPELLANT/ACCUSED: GEORGE S/O. KURIAN, PALATHADATHIL HOUSE, MARIGIRI KARA, VATHIKUDI VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = Crl. A. No. 68 of 2004** **= = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)II, Thodupuzha, for the offence under Section 8(2)/8(1) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for a period of two months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 68/2014 2 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Murikkasserry Police Station, and his party were on law and order duty at Marygiri Kara near Marygiri Church in Vathikkudy Village, at about 7.30 p.m. on 29-4-2001. While so, PW5 got secret information that the appellant was selling arrack at his residence. Therefore, after preparing a Search Memorandum for the purpose of searching the house of the appellant and entrusting the same to a Police Constable for producing before the court, PW5 and his party along with the witnesses DWs.2 and 3 reached in front of the house of the appellant at about 8 p.m. on that day. Seeing the police party, the appellant jumped from the verandah of his house into the courtyard with a black jerrycan and attempted to flee away. But, the police party stopped him there. On questioning the appellant, he informed that the jerrycan CRA 68/2014 3 contained arrack and it was kept in his house for the purpose of sale. Therefore, the appellant was arrested by PW5 at 8.05 p.m. preparing Exts.P6 Arrest Memo and Ext.P7 Inspection Memo. Ext.P8 is the Arrest Intimation. On examining, it was found that the jerrycan possessed by the appellant was of 5 litre size containing about 2 litres of arrack. The jerrycan containing arrack was seized by PW5 under Ext.P2 Seizure Mahazar in the presence of witnesses at 8.10 p.m. PW5 has drawn three samples of 180 ml. each in three bottles from the bulk and sealed and seized them. Thereafter, PW5 reached Murikkassery Police Station with the appellant and the contraband at 10 p.m. and registered Crime No. 43 of 2001 of that Police Station. Ext.P5(a) is the F.I.R. thus drawn by PW5. He has produced the appellant before the court along with the Remand Application. He has also produced the records of the case before the court. He has produced the contraband including CRA 68/2014 4 its samples before the court along with Ext.P9 List of Property and Ext.P10 Forwarding Note on 14-5-2001. He has questioned the witnesses and recorded their statements. After completing the investigation, he has submitted the Final Report before the Judicial First Class Magistrate's Court, Idukki. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Thodupuzha. A charge was framed against the appellant alleging the offence under Section 8(2)/8(1) of the Abkari Act. The appellant pleaded not guilty of the charge. Later, the case was transferred to the Additional Sessions Court(Adhoc)II, Thodupuzha. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P11 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. The appellant denied all the CRA 68/2014 5 incriminating circumstances shown against him. DW1 was examined on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence alleged and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW5 and his party detected the offence at about 8 p.m. on 29-4-2001 and PW5 has seized the contraband and its samples under Ext.P2 Seizure Mahazar at 8.10 p.m.on 29-4-2001 in the presence of witnesses. But, PW5 has produced the properties so seized before the court along with Ext.P9 List of Property only on 14-5-2001. Ext.P9 is seen prepared on 29-4-2001. But, the properties were produced before the court along with Ext.P9 only on 14-5-2001. What was the reason for occurring such CRA 68/2014 6 an inordinate delay in producing the properties before the court? PW5 stated that the contraband items were produced before the court on 14-5-2001. Also stated that they were under his safe custody till then. This is the explanation offered by PW5 during his examination-in-chief for the delay occurred in producing the contraband items before the court. But, when he was confronted with a question, during further cross examination with permission, in respect of the delay occurred in producing the contraband items, he stated that the production of the properties was delayed due to workload. Such a case was not pleaded by him while he was examined in chief. But offered only when he was confronted with an inconvenient question in respect of the delay occurred in producing the properties. In any of the documents, including Ext.P9 List of Property, produced by PW5 before the court contains such an explanation offered by PW5 before the court. He has produced the CRA 68/2014 7 appellant before the court along with the Remand Report on 30-4-2001. In that Remand Report, he has stated that the properties were being sent to the court. He has also produced Ext.P2 Seizure Mahazar, Ext.P5 F.I.R., Ext.P6 Arrest Memo, Ext.P7 Inspection Memo and Ext.P8 Arrest Intimation before the court on 30-4-2001. Then, he was not facing any such workload preventing him from producing those documents. He admitted that a jeep was being used by him. The contraband items are only one 5 litre size jerrycan containing about 1.460 litres of arrack and three 180 ml. size bottles containing arrack taken as sample. Therefore, there was no difficulty at all for PW5 to produce these contraband items along with the records before the court on 30-4-2001 itself. Production of the contraband items along with the List of Property before the court was an urgent duty. Such a duty has to be performed without any unnecessary delay. PW5 did not tell the court as to what CRA 68/2014 8 was the nature of the workload that prevented him from producing the contraband items till 14-5-2001. A bald statement made by PW5, while he was confronted with an inconvenient question, that the production of the properties was delayed due to the workload cannot be accepted as a proper and satisfactory explanation for such an inordinate delay occurred in producing the properties before the court. 6. A Division Bench of this Court in **Ravi v. State of Kerala(2011(3)KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW5 is not proper and satisfactory. A learned Judge of this Court in **Ramankutty v. Excise Inspector(2013(3)KHC 308)** found, for the reasons stated in the judgment, that an CRA 68/2014 9 unexplained delay of a single day is fatal to the prosecution case. Therefore, the inordinate delay that occurred in producing the contraband items before the court is fatal to the prosecution in this case. 7. Whether the case of the prosecution that the appellant was arrested and contraband items were seized from the courtyard of the house of the appellant can be believed? PW1 is a Police Constable who claimed to have accompanied PW5 while arresting the appellant and seizing the contraband from him. PWs.1 and 5, by and large, supported the prosecution version of occurrence. PWs.2 and 3 were cited and examined as independent occurrence witnesses. They did not support the prosecution case. Their case is an entirely different one, which I shall deal with in due course. PWs.1 and 5 deposed that a Search Memorandum has been prepared and sent to the court through a Police Constable before going to search the house CRA 68/2014 10 of the appellant. It is so stated in Ext.P2 Seizure Mahazar as well. But, that Search Memorandum or a copy of the same has not been marked in this case. Whether such a Search Memorandum, if prepared, contains the necessary details as mandated by Section 165 of Cr.P.C.? Ext.P2 does not contain the required details. It is the duty of the prosecution to show that the Search Memorandum has been prepared fully complying with the requirements of Section 165 of Cr.P.C. But, that duty of the prosecution has not been discharged by marking the Search Memorandum claimed to have been prepared. A Search Memorandum or a copy of the same is not seen among the records available in the court. 8. Ext.P2 Seizure Mahazar shows that people are residing on all the four sides of the house of the appellant. None of them was made a witness in this case. PW5 admitted that while they were in front of the house of the CRA 68/2014 11 appellant, 4-5 persons were seen gathering there. None of them was made a witness in this case. 9. PW5 stated that the liquid contained in the jerrycan carried by the appellant was examined by tasting and smelling by him as well as the witnesses and thus ascertained it as arrack. But, PW5 does not have such a case in Ext.P2. Along with these facts, the fact that the contraband items allegedly seized from the appellant were produced before the court only on 14-5-2001 has to be considered. These facts create considerable doubt with regard to the genuineness of the case spoken to by PWs.1 and 5. PWs.2 and 3, independent witnesses, not only supported the prosecution versions of occurrence but also stated a different case altogether. Their case is that during the festivities were going on at the Church, the appellant was present there in a drunken stage. He was seen using abusive language against a person. Seeing that the police CRA 68/2014 12 party came there. The appellant quarrelled with the police party as well. The police has taken him to their jeep from that place itself. The defence has examined DW1 who is running a grocery shop in front of the Church. He has also endorsed the case narrated by PWs.2 and 3. DW1 stated that the appellant was arrested by the police at 7.30 p.m.from the road in front of his shop. The appellant was standing there drunk and using abusive language at that time. While so, the police came there by their vehicle. While the Sub Inspector attempted to take him to that vehicle, he has kicked away the hand of the Sub Inspector. Then, the Sub Inspector gave him a slap on his back and took him away by that vehicle. When considering all the attendant facts and circumstances of this case, the case deposed to by PWs.2 and 3 and DW1 cannot be brushed aside at all. All these facts lead this Court to entertain a genuine doubt with regard to the case of occurrence pleaded CRA 68/2014 13 by the prosecution. The appellant, at least, is entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(2)/8(1) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant shall be returned to him. This appeal is allowed. ## **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. To Judge