GIRIYAPPA POOJARY S/O MANA POOJARY v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941** **CRL.A.No.1032 of 2006** **AGAINST THE ORDER/JUDGMENT IN SC 273/2002 of ADDITIONAL SESSIONS COURT (ADHOC) III, KASARAGODE DATED 24-05-2006** **AGAINST THE ORDER/JUDGMENT IN CP 301/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD DATED 6.8.2002** ## **APPELLANT/ACCUSED:** **GIRIYAPPA POOJARY S/O. MANA POOJARY, MAIRE VILLAGE,, KASARAGOD.** **BY ADV. SRI.T.B.SHAJIMON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, BADIADKA POLICE STATION., WHO IS REP. BEFORE THIS HONOURABLE COURT BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.A1032/2006 -2- ## **JUDGMENT** The accused in SC No.273/2002 on the file of Additional Sessions Judge (Adhoc) - III, Kasaragod, is the appellant, who was found guilty of having committed an offence punishable under Section 55(a) of the Abkari Act, convicted thereunder, and sentenced to undergo simple imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- with a default sentence of six months' simple imprisonment. 2. The prosecution case in brief is that on 18.9.2000 at about 6 p.m; on getting reliable information, the Sub Inspector of Police (PW1), Badiyadka Police Station, proceeded to the scene of occurrence with his party consisting of PW2, a Police Constable, and in the presence of independent witnesses, who are examined as PWs3 to Crl.A1032/2006 -3- 5, examined the premises of the accused and found 120 bottles of foreign liquor containing 375 ml each and 8 bottles of foreign liquor containing 750 ml each, apart from a can containing 40 litres of liquor which was identified as arrack. 3. The Sub Inspector arrested the accused as per Ext.P1 arrest memo and prepared Ext.P2 seizure mahazar on which, himself and the witnesses subscribed their signatures. On returning to the Police Station along with the contraband articles and the accused, he registered Ext.P3 first information report as crime No.159/2000 of Badiadka Police Station and thereafter proceeded to investigate the case. He prepared Ext.P4 scene mahazar, detailed the contraband articles seized by him in Ext.P5 property list and also prepared Ext.P6 forwarding note requesting the samples taken from the scene of occurrence to be sent for chemical examination. A certificte from the Crl.A1032/2006 -4- Village Officer was obtained as Ext.P8 regarding the possession and ownership of the property. The chemical examination report is Ext.P7 which confirms that the liquid examined contains ethyle alcohol. On the basis of the evidence adduced by PW1 to PW5 and on examining Exts.P1 to P8 documents, the learned Additional Sessions Judge found the accused guilty and convicted him as stated above. 4. The serious infirmity pointed out for the appellant in this case is that the detecting officer himself is the investigating officer. The Hon'ble Supreme Court has in _**Mohan Lal v. State of Punjab [2018 KHC (4) 387]**_ discussed the various decisions on this aspect and held thus:- “14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official Crl.A1032/2006 -5- in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.” 5. Earlier, A Single Judge of this Court in _**Naushad v. State of Kerala [2000 KHC 152 : 2000 (1)**_ _**KLT 785 : 2000 (1) KLJ NOC 36 : ILR 2000 (2) Ker.**_ _**419 : 2000 CriLJ 2870],**_ while deciding a case under the NDPS Act held as follows: "...In a case of this nature, when the complainants himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under S.154 or 155 CrPC and previous statement of the witness, being a police officer, complaint recorded, under S.161 CrPC enjoined in S.145 and 157 of the Indian Evidence Act and proviso of S.162 CrPC. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the Crl.A1032/2006 -6- petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police Officer above the rank of PW1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner." 6. A Division Bench of this court in _**Kader v.**_ _**State of Kerala [2001 KHC 424 : 2001 CriLJ 4044 :**_ _**2001 (2) KLT 407 : 2001 (1) KLJ 877 : ILR 2001 (2)**_ _**Ker. 449]**_ disagreed with the Single Judge's finding and overruled it holding thus: "6. Unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same ranks as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under NDPS Act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad v. State of Kerala, 2000 (1) KLT 785 to the contrary is overruled." Crl.A1032/2006 -7- 7. In _**Mohan Lal**_ (supra) the Hon'ble Supreme Court had opportunity to consider both the aforesaid decisions of this High Court and upheld the findings of the Single Judge while overruling the Division Bench finding of this Court stating as thus: “24. The view taken by the Kerala High Court in Kader (supra) does to meet our approval. It tantamounts to holding that the F.I.R. was a gospel truth, making investigation an empty formality if not a farce. The right of the accused to a fair investigation and fair trial guaranteed under Art.21 of the Constitution will stand negated in that event, with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof. An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation. The fact is a mere information and is not synonymous with the truth. Kader (supra) is, therefore, overruled. We approve the view taken in Naushad (supra).” However, the Hon'ble Supreme Court later came with a clarification of _**Mohan Lal**_ (supra) by holding thus in _**Varinder Kumar v. State of Himachal Pradesh**_ Crl.A1032/2006 -8- ## _**[2019(1)KHC 828 : 2019(1) KLT 615]**_ : “The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni-directional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in _Mohan Lal (supra)_ is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in _Mohan Lal (supra)_ shall continue to be governed by the individual facts of the case.” 8. In the case in hand, the Sub Inspector being the detecting officer, should have entrusted the investigation to his immediate superior or to any other superior officer. PW1 confirms that he did not hand over the investigation to anyone and right from the inception of the case till the charge sheet was framed, he alone was in charge of the case. But in view of the clarification to _**Mohan**_ _**Lal** (supra),_ the decision cannot be applied to the case in hand. 9. Nevertheless, there are other infirmities -9- ## Crl.A1032/2006 in this case. The forwarding note and the property list were all prepared on the very next day of seizure. But, interestingly, the articles are produced before the court as seen from the seal and the date affixed on Exts.P5 and P6 only on 23.9.2000. The delay in production of the contraband articles before the court has not been explained by PW1 or PW2. The independent witnesses examined as PW3 to PW5 turned hostile. 10. This Court has held in _**Mahesh M.K. v. State**_ _**[2017 (1) KHC 120]**_ that the delay in production of the contraband articles has to be explained by the prosection. Without any explanation forthcoming, it cannot be held that the conviction of the appellant was proper. The impugned judgment, convicton and sentence will therefore have to be set aside and I do so. In the result, the Criminal Appeal is allowed and the conviction and the consequent sentence of ## Crl.A1032/2006 -10- the accused in SC No.273/2002 is hereby set aside. The appellant/accused is set at liberty, in case he is not required in connection with any other case. The bail bond if any executed by the accused shall stand cancelled. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg