Jayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **CRL.A.No. 195 of 2011** **AGAINST THE JUDGMENT IN SC 510/2007 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA DATED 10-01-2011** **APPELLANT/ ACCUSED :** **JAYAKUMAR, S/O. SUKUMARAN, CHARIVUPURAYIDATHIL KURIYANNOOR, THOTTAPPUZHASSERRY, THIRUVALLA, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.M.T.SURESHKUMAR** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. K.K.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **CRL.A.No. 195 of 2011** 2 ## **JUDGMENT** The appellant herein is the sole accused in S.C.No.510/2007 on the files of the Additional District and Sessions Judge (Adhoc,) Fast Track Court-I, Pathanamthitta. The appellant was charged sheeted with and tried for having committed the offences punishable under Sections 8(1) & 8(2) of the Kerala Abkari Act. 2. At the closure of the trial, the learned Sessions Judge, as per judgment dated 10.01.2011 found him guilty of the offences, convicted and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months more. According to the appellant the trial and conviction of the appellant is vitiated by grave illegalities and errors apparent on the face of the record. Hence, **CRL.A.No. 195 of 2011** 3 the appeal has been preferred. 3. The prosecution allegation is that on 26.09.2006, at about 8.00 p.m., the Excise Officials from the Thiruvalla Excise Range were on patrol duty. When they were passing through Thonnippuzha-Charakkunnu road, at about 100 meters North of Paruthi Junction, the appellant was found coming carrying a Can. The Excise vehicle had allegedly been stopped near to the accused and ascertained his name and address. Thereafter, in the presence of two witnesses, the contents of the Can were ascertained by smelling and tasting and it was concluded by the Excise party that the liquid in the Can was arrack. It is the case of the prosecution that the Can had the capacity to contain 5 litres, and the said Can was containing full of arrack. It is further alleged that 200 ml of arrack was taken as sample in a 375 ml. bottle **CRL.A.No. 195 of 2011** 4 and the same was sealed. Labels containing signatures of the accused, witness and the officer were affixed both on the sample bottle. Detailing all the procedures adopted by the officials, a mahazar was also prepared on the spot. On reaching the Excise Range Office, Thiruvalla, Crime No.56 of 2006 was registered implicating the appellant as the accused by incorporating offence under Section 8(1) and 8(2) of the Kerala Abkari Act. The accused was produced along with the contraband articles and other records on 27.09.2006, before the Judicial First Class Magistrate Court, Thiruvalla. The accused got remanded on an application filed by the investigating officer. The investigation in this case was completed and the final report was filed by the Excise Inspector, Thiruvalla Range and the said report was taken into the file of the JFCM Court-I, Thiruvalla as C.P.No.77/2007. **CRL.A.No. 195 of 2011** 5 4. On receipt of the final report, the learned Magistrate took cognizance of the offence and issued process. Pursuant to the summons from the said court, the accused entered appearance. The accused was given all the records of the case, which the prosecution would propose to rely and thereafter, the case was committed to the Sessions Court, Pathanamthitta and the same was numbered as S.C.No.510 of 2007. The accused appeared on summons before the Sessions Court. Thereafter, the case was transferred to the Additional District and Sessions Judge (Ad hoc), Fast Track- I, Pathanamthitta. The said court, after perusing the prosecution records and hearing both sides, framed charge under Sections 8(1) and 8(2) of the Abkari Act. When the charge was read over, the accused pleaded not guilty. 5. On the side of the prosecution PWs 1 **CRL.A.No. 195 of 2011** **==> picture [6 x 8] intentionally omitted <==** to 4 were examined and Exts.P1 to P9 were marked and MO1 got identified. After the closure of the prosecution evidence the incriminating circumstances appearing against the accused were put to him under Section 313 of the Cr.P.C. No witnesses were examined on the side of the defence. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor apart from perusing the record. 7. At the time of argument, the learned counsel for the appellant has submitted that in this case the detecting officer and the investigating officer is one and the same. PW4 is the detecting officer, who has detected the offence on 26.09.2006. PW1 is the Excise Guard, who accompanied PW4. PW2 is the independent witness, who has admitted the signature on Ext.P1 **CRL.A.No. 195 of 2011** **==> picture [6 x 8] intentionally omitted <==** mahazar. PW4 is the Excise Inspector, who has detected the offence and filed charge sheet before the court and verified the charge sheet and understood that PW4 is the detecting officer as well as the investigating officer. 8. The learned counsel for the appellant has placed reliance on the decision in _**Mohan Lal**_ _**v. State of Punjab [2018 (4) KHC 387]**_ wherein the Apex Court held that 'a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. It is also held that a fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS cases were not to be fair or raises serious questions about its fairness apparent on the fact of the investigation. In a **CRL.A.No. 195 of 2011** 8 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'. 9. In this case, the Investigating Officer and the Detecting Officer is one and the same and therefore, it cannot be said that a fair investigation was done in this case. In the absence of a fair investigation, there can be no fair trial. On this sole ground alone, I find that it is just and proper to allow the appeal. In the result this appeal is allowed. The conviction and sentence imposed on the appellant ## **CRL.A.No. 195 of 2011** **==> picture [6 x 8] intentionally omitted <==** in S.C.No.510/2007 on the file of the Additional District and Sessions Judge (Ad hoc) Fast Track Court-I, Pathanamthitta is hereby set aside. He is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** TRUE COPY PA TO JUDGE RKM