Guruva v. State of Kerala

Crl.A No 431 of 2015 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943_ ## _CRL.A NO. 431 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN SC 202/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD / I_ ## _ADDITIONAL MACT, KASARAGODE, KASARGOD_ ## _APPELLANT/ACCUSED:_ _GURUVA, AGED 52 YEARS, S/O.LATE ANGARA, CHIKKOORPATHA DESOM, KULLUR VILLAGE, KASARAGOD TALUK AND DISTRICT._ _BY ADVS. SRI.JAWAHAR JOSE SRI.ARUN AJAY SHANKAR_ ## _RESPONDENT:_ _THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _R BY SRI.ARAVIND MATHEW, PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON 12.11.2021 DELIVERED THE FOLLOWING:_ Crl.A No 431 of 2015 2 ## _O R D E R_ _The appellant is the accused in a S.C.No. 202/2012 of the First Additional District and Sessions Court Kasragod. This appeal is filed by the appellant challenging the conviction and sentence imposed upon him by the Sessions Court in the above case, for the offence punishable under sections 55 (a) of Abkari Act. As per the judgment impugned in this case, the appellant was sentenced to undergo simple imprisonment for_ _a period of 3 years and a fine of 1,00,000/-_ ₹1,00,000/- _(Rupees one lakh only) with a default sentence of simple imprisonment for 6 months._ _2. The prosecution case is that, on 21/01/2008 at about 6.15 pm the appellant was found in possession of 250 packets, each_ _containing 100 ml of arrack._ **==> picture [398 x 11] intentionally omitted <==** _appellant and the learned public prosecutor._ Crl.A No 431 of 2015 3 _4. The Learned counsel for the appellant contends that the prosecution miserably failed in establishing the guilt of the appellant. The evidence of PWs 1 and 2, is inconsistent with the evidence of PW6 (investigating officer). It was further contended that even though the appellant was arrested on 21.01.2008, evidence of PW6 would reveal that, the investigation of the said case was commenced only on 12/07/2000 which is after a period of 2 years. Even though,_ _PW6 was specifically cross examined on the cause of delay, he could not furnish any explanation for the same. The learned counsel also brought the attention of this Court to the difference in the quantity in the sample forwarded to the Chemical examination as per Exhibit P7, with the quantity mentioned in Exhibit P12 chemical analysis report. The learned counsel for the appellant relies on the judgments in Krishnan.H_ Crl.A No 431 of 2015 4 _and v. State (2015 (1) KHC 822) and Kumaran versus State of Kerala (2016 (5) KHC 632)._ _5. Per contra, the learned public prosecutor would dispute the contentions put forward by the learned counsel for the_ _appellant. It was pointed out that even though there was some delay in commencing the_ _investigation, no prejudice has caused to the appellant and therefore the same cannot be treated as a material aspect vitiating the prosecution. With regard to the discrepancies in_ _the evidence of certain witness pointed out by the learned counsel for the appellant, it was contented that the same was not material when the evidence as a whole is taken into_ _consideration. The difference in the quantity of_ _the sample taken is very minute and no significance need to be given to the same. In such circumstances learned public prosecutor_ Crl.A No 431 of 2015 5 _would seek dismissal of the appeal._ _6. The incident which resulted in_ _registration of the crime was explained by PW1 and PW2. According to PW1, the Preventive Officer of Kumbala Excise range, on 21/01/2008 at about 6 pm, along with CW2 were on patrol duty. When they reached in front of the pump house of Thothathodi supply scheme in Kulur village, they found the appellant coming through_ _the road by carrying a white plastic sack. As the behaviour of the appellant aroused some suspicion, they questioned the appellant and the plastic sack was checked in the presence of witnesses. During such inspection, 250 packets containing 100ml each of arrack were found and immediately the same were seized and out of the same, 290ml of arrack was taken as a sample in a bottle of 375ml. The sample was sealed, labelled and a Seizure mahasar for the same was prepared_ Crl.A No 431 of 2015 6 _in the presence of witnesses. The appellant was arrested and was handed over to the Excise Range office Kumbala along with the documents prepared as mentioned above. Thereafter PW5 registered Ext P1 occurrence report, and then property list, forwarding note etc. were prepared and forwarded to Court on the same day. Thereafter,_ _the investigation was conducted by PW6 and on completion thereof, charge sheet was submitted before the Court._ _7. The main contention put forward by the learned counsel for the appellant is regarding the delay in commencing the investigation. The learned counsel for the appellant brought my_ _attention to the evidence of PW6 wherein it was_ _specifically mentioned that he had commenced the investigation only on 12/07/2010 whereas, the appellant was arrested on 21/01/2008. Thus there is a delay of about 2½ years in commencing_ Crl.A No 431 of 2015 7 _the investigation. The learned counsel for the appellant would strongly contend that no explanation for the delay is forthcoming from the part of prosecution and hence it is fatal to the prosecution. In Krishnan’s case (supra), it_ _was held that delay in commencing the investigation and filing the charge sheet is_ _fatal to the prosecution. The said judgment was_ _followed in Kumaran P (supra) and similar observations were made. However, in Santosh T.A_ _and another v. State of Kerala (2017 (5) KHC_ _107) Krishnan’s case was considered by another learned single judge of this Court, in the light_ _of the observations made by the Honoruable Supreeme Court in a number of judgments. In the said case, it was observed as follows;_ _“34. In Ranbir and Others v. State of Punjab, 1973 KHC 590 : 1973 (2) SCC 444 1973 SCC (Cri) 858 : AIR 1973 SC 1409 : 1973 CriLJ 1120 the Supreme Court held: "The delay in examining a witness during investigation is material only_ Crl.A No 431 of 2015 8 _if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case". This has been reiterated by the Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra, 1978 KHC 637 : AIR 1979 SC 135 : 1978 (4) SCC 371 : 1979 SCC (Cri) 1 : 1979 CriLJ 51 in the following words: "Delay may not, by itself, amount to serious infirmity in the prosecution case. But it may assume such a character if thereare concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced". It added: If the circumstances of the case lead to "the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion", it is fatal. The same view has been taken by the Supreme Court in Banti @ Guddu v. State of Madhya Pradesh, 2004 KHC 372 : 2004 (1) SCC 414 : AIR 2004 SC 261 : 2004 SCC (Cri) 294 : 2004 CriLJ 372 and Surajit Sarkar v. State of West Bengal, 2012 KHC 4708 : 2013 (2) SCC 146 : 2013 (1) KHC SN 10 : 2013 (1) KLD 72 : 2012 (11) SCALE 496 : 2013 (1) KLT SN 9 : 2013 CriLJ 1137 : AIR 2013 SC 807 : 2013 (2) SCC (Cri) 877 : 2013 (115) Cut LT 1120 : 2013 (122) AIC 174.”_ Crl.A No 431 of 2015 9 _8. Thus, it was held therein that, the observations in the judgment in the case of Krishnan H. (supra) with regard to the delay in completing the investigation, are not in conformity with the decisions of the Hon’ble Supreme Court referred to above. In a recent judgment, another learned single judge of this Court in Varghese v. State of Kerala (2020 (6)_ _KHC 589 , observed that unless there occurred any_ _prejudice to the accused, delay in completing the investigation cannot be treated as fatal to the prosecution. In the said case also judgment_ _in Krishnan’s case was specifically referred to._ _9. In the light of the above principles laid down by this Court by placing reliance upon various judgments of the Hon’ble Supreme Court, the_ _contention of the learned counsel for the appellant_ _is not sustainable. Merely because of the reason that, there was delay on the part of the_ _investigating agency in commencing and completing_ Crl.A No 431 of 2015 10 _the investigation, the appellant cannot be_ _acquitted. This is particularly because, appellant could not point out any prejudice that has caused to him on account of the delay. The documents before me indicate that, even though the appellant was apprehended on 21/01/2008, he was released on bail on 28/02/2008. No specific instances of prejudice could be pointed out by the appellant, on account of the delay in investigation. Similarly, the appellant also could not point out any_ _possibilities of any manipulation in the material objects nor he could make out any case, suggesting possibilities of the investigating officer purposefully delaying the investigation, for creating any materials or for shaping a case against the appellant. On the other hand, the learned counsel for the appellant, put a specific suggestion to PW6, during the cross examination that, the delay in investigation was due to the pendency of a complaint submitted by the wife of_ Crl.A No 431 of 2015 11 _the appellant/accused against the officers. This is a factor which would go against the contention of learned counsel regarding the unexplained delay in the investigation. In such circumstances, I have no hesitation in holding that the delay in completing the investigation is not fatal to the prosecution case._ _10. Another contention put forward by the_ _learned counsel for the appellant is that there is serious discrepancy in the evidence with regard to the place of recording of the statement of PW1 and PW2. PW1 stated that, PW6 has recorded his statement after coming to his office at Vijayanagar. Similarly PW2 would state_ _that his statement was recorded on 18/07/2010 in_ _the office of Excise Range of Kumbala. PW6 on the other hand stated that, the statement of PW1 was recorded at Government Gust House and the statement of PW2 was recorded at Nileswaram bus stand. However, as pointed out by the learned_ Crl.A No 431 of 2015 12 _public prosecutor, the aforesaid discrepancy cannot be treated as fatal to the prosecution case. All the other aspects material to the case, including the sequence of events which led to the detection of the article, registration of the crime, arrest of the appellant etc. were clearly stated by all the said witnesses consistently. Despite anxiously scanning through_ _the entire contents of the same, no serious_ _discrepancies, which affect the credibility of_ _the said witnesses could be noticed. In such_ _circumstances I am of the view that, the_ _discrepancy with regard to the place at which_ _the statements of the aforesaid witnesses were_ _recorded is not something fatal to the prosecution case. Hence the contention put_ _forward by the learned counsel for the appellant_ _in this regard is only to be rejected._ _11. Another contention put forward by the_ Crl.A No 431 of 2015 13 _learned counsel for the appellant is with regard to the difference in the quantity of the sample taken. In Exhibit P7 property list, the quantity of the sample taken is shown as 290ml, whereas, in Exhibit P12 chemical examination report the_ _quantity of the sample received is shown as 296ml. The learned counsel would contend that the aforesaid discrepancy is very much material_ _and would seriously affect the veracity of the_ _sample taken. However, I am not inclined to accept the said contention. The difference in quantity is too marginal to give any_ _significance to the same. It is a marginal error_ _which could have occurred while taking the_ _measurement or could also be a clerical error,_ _while preparing the report or mahazer. It is to be noted in this regard that, the appellant could not point out any discrepancy with regard to the manner in which the sample was collected,_ Crl.A No 431 of 2015 14 _sealed and kept in custody. Exhibit P12 chemical examination report would clearly indicate that the seals on the bottle were intact and the said seals were found tallying with the sample seal provided. As the materials before me do not reveal any discrepancy as to the collection of sample, affixture of seal thereon and subjecting_ _the sample so collected for chemical examination, I am of the view that, the contention of the learned counsel for the appellant by relying upon the marginal difference in the quantity of the sample is only to be ignored, as it is not a material aspect affecting the veracity of the prosecution case._ _12. Lastly, it was contented by the learned_ _counsel for the appellant that there is discrepancy in the prosecution case with regard to the submission of property list before the Court on the same day of the occurrence._ Crl.A No 431 of 2015 15 _According to the learned counsel for the appellant, as per the prosecution case, the appellant was arrested at 6.15 pm which has_ _occurred after the office hours of the court of jurisdictional Magistrate. In such circumstances it was contended that it was not possible to forward the same to the Court on the very same day. However, I am not inclined to accept the said contention. It is evident from the records that the accused was produced before the jurisdictional Magistrate on the very same day of his arrest. The endorsement in the property list clearly indicate that, the same was received on the very same day. In such_ _circumstances, I have no reason to accept the_ _contention of the learned counsel for the_ _appellant. The property list also must have been produced before the jurisdictional Magistrate while the accused was produced. Moreover, no_ Crl.A No 431 of 2015 16 _questions with regard to this aspect was put to PW5, who has prepared the aforesaid property list and submitted the same before the jurisdictional Magistrate, while he was crossexamined by the learned counsel for the appellant. In such circumstances, I do not find any merit in the aforesaid contention as well._ _After examining the entire materials available on record, I could not find any_ _materials warranting any interference in the findings entered into by the Sessions Court. In such circumstances, I do not find any merits in the appeal. Accordingly, I dismiss this appeal by confirming the conviction and sentence_ _imposed by the Sessions Court._ _Sd/ZIYAD RAHMAN A.A. JUDGE_ DG