Gopi, Kuttiyanickal Veettil Veliyamattom Village, Thodupuzha v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 CRL.A NO. 1450 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENTSC 174/2006 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC)-II, THODUPUZHA CP 1/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I ``` ``` (FOREST OFFENCES),TPA ``` ## **`APPELLANT/S:`** ``` GOPI, KUTTIYANICKAL VEETTIL, VELLIYAMATTOM VILLAGE,, THODUPUZHA. BY ADVS. SRI.P.SANJAY SRI.BIJU MEENATTOOR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE EXCISE RANGE OFFICER,, IDUKKI REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A.No. 1450 of 2007 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.No. 1450 of 2007 ============================================================= Dated this the 1[st] day of August, 2022 ## **JUDGMENT** This is an appeal by the accused against the judgment dated 17.07.2007 in SC No.174 of 2006 of the files of the Additional Sessions Judge (Adhoc)-II, Thodupuzha. The above case is chargesheeted against the appellant alleging offences punishable under Sections 55(a) of the Abkari Act. 2. The prosecution case is that on 04.11.2003 PW2 the Excise Inspector and his party got information that the accused was selling illicit liquor in his house in the Lakshamveedu Colony. The officer proceeded to the house of the accused and accused was available in the house. The house was searched. No contraband articles were found inside the house. In the varanda of the Charthu on the eastern side of the house, a -3- Crl.A.No. 1450 of 2007 bundle of grass was found. The bundle was searched and four 750 ml bottles contained some coloured liquid was found concealed in the bundle of grass. The bottles were opened and the liquid in it was examined and it was identified as illicit liquor. A cattle shed on the western side of the house was also searched and 375 ml bottle contained coloured liquor was found in the cattle shed. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case prosecution examined PW1 to PW5. Exts.P1 to P9 are the exhibits marked from the side of prosecution. Two witnesses were examined on the side of the defence side as DW1 and DW2. MO1 and MO2 are the material objects. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 58 of the Abkari Act. He was sentenced -4- Crl.A.No. 1450 of 2007 to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for a period of three months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that the prosecution miserably failed to prove that the accused was in conscious possession of the liquor which is alleged to be seized from the Varanda and cattle shed of the house. The counsel submitted that there is no case to the prosecution that any contraband article is seized from the house, which according to the prosecution belongs to the accused. The counsel also submitted that the prosecution miserably failed to prove the ownership of the house. In addition to all, the counsel also -5- Crl.A.No. 1450 of 2007 submitted that there is a long delay of three years in completing the investigation. The Public Prosecutor, on the other hand, supported the prosecution case and submitted that there is oral and documentary evidence to prove the case. Therefore, there is nothing to interfere with the conviction and sentence. 6. This Court considered the contentions of the appellant and the prosecutor. This Court perused the evidence adduced by PW1 to P5. PW1 is the independent witness, who turned hostile to the prosecution. PW2 is the detecting officer. This Court perused the evidence adduced by PW2. PW2 pleaded ignorance about the contention of the appellant that his two children are residing in the house. If that is the case, PW2 has no definite case that the accused is residing in the house. Moreover, the contraband is seized not from inside the house. It is seized from the Varanda and the cattle shed, which is -6- Crl.A.No. 1450 of 2007 accessible to anybody. In such circumstances, without strong evidence to show that the accused was in conscious possession of the contraband, it is very difficult to convict the accused in a serious case like this. Moreover, there is a long delay of three years in completing the investigation in this case. The delay in investigation is fatal to the prosecution and especially in a case in which small quantity of liquor is alleged to be seized. In **Kumaran v. State of Kerala and others [2016 (4) KLT 718]** and **Cheruvayi Mukundan and others v. State of Kerala [2016 (3) KLT 532]** , this Court considered this point. It will be beneficial to extract the relevant portion of the judgment in **Kumaran's** case (supra). 6. “The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. -7- Crl.A.No. 1450 of 2007 State of Kerala, 2015 (1) KHC 822 : 2015 (1) KLD 421 : 2015 (1) KLJ 793 : 2015 (2) KLT SN 11 to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24/07/2007, the investigation was conducted and the final report was filed before the Court only on 13/01/2009. PW 2 was the Investigating Officer. PW 2 started the investigation of this case only on 15/02/2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres”. 7. In the light of he above discussion, I think the accused is entitled the benefit of doubt. Therefore, this appeal is to be allowed. -8- Crl.A.No. 1450 of 2007 The appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 07.07.2007 in SC No.174 of 2006 on the file of Additional Sessions Judge (Adhoc)-II Thodupuzha is set aside. The accused is set at liberty. The bail bond, if any, executed by the accused is cancelled. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das