Jemini s/o. Pullirikka Prabhakaran v. The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936 CRL.A.No.384 of 2004 (C) ----------------------------AGAINST THE JUDGMENT IN SC 396/2002 of III ADDITIONAL SESSIONS COURT THRISSUR DATED 11-02-2004 -------- APPELLANT/ACCUSED: ------------------------- JEMINI S/O. PULLIRIKKA PRABHAKARAN, KUNDUKUZHIPADOM, KUTTICHIRA, THRISSUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT/STATE ----------------------- THE STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, IRINJALAKUDA - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31. R1 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.384 of 2004 -----------------------------------------------Dated this the 3[rd] day of September, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Thrissur, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo rigorous imprisonment for three 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. 3. The prosecution case is briefly stated as follows: PW4, the Excise Preventive Officer, Excise Range Office, Irinjalakkuda, and his party were on patrol at Amballur in Amballur Village at about 3.30 p.m. on 01-08-1999. While so, Crl. Appeal No.384 of 2004 -2- a person who alighted from the bus by name “St. George” bearing Reg. No.KL-8M5090 was seen going to the bus stop carrying a plastic bag. On examining that bag by PW4, twenty 180 ml. bottles containing full of Indian made foreign liquor of the brand Nisha Fine Brandy were found. Since the appellant had committed an offence, he was arrested then and there by PW4 preparing Ext.P2 Arrest Memo. Ext.P9 is the Arrest Notice. Since the liquor contained in all the 20 bottles were alike, PW4 had taken one of the bottles as sample for the purpose of subjecting it to chemical analysis. All the bottles including the sample bottle were labelled and sealed. PW4 had seized all the 20 bottles containing liquor and the plastic bag under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 reached the Excise Range Office, Irinjalakkuda, with the appellant and the properties. They were handed over to the Excise Inspector of that Range Office on 02-08-1999. The Excise Inspector had registered Crime No.48 of 1999 of that Range Office in Crl. Appeal No.384 of 2004 -3- respect of the occurrence. Ext.P5 is the Crime and Occurrence Report thus prepared by the Excise Inspector. He had produced the appellant and the properties before the court on 02-08-1999. Ext.P6 is the List of Property and Ext.P8 is the Remand Report submitted by the Excise Inspector before the court. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. PW3, the Excise Inspector of that Range Office, had conducted the investigation of the case. He had prepared Ext.P3 Scene Mahazar in the presence of witnesses. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Irinjalakkuda. 4. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made over to the Principal Assistant Sessions Court, Irinjalakkuda. A charge was framed against the appellant alleging the Crl. Appeal No.384 of 2004 -4- offence under Section 58 of the Abkari Act. The appellant pleaded not guilty of the charge. Subsequently, the case was transferred to the Additional Sessions Court (Adhoc)-I, Thrissur. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P10 series and MOs.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. He stated that he was innocent of the charge. Exts.B1 to B4 were marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 of the Abkari Act 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. It is the case of the prosecution that PW4 had detected the offence, arrested the appellant and seized the contraband. Thereafter, he reached the Excise Range Office, Crl. Appeal No.384 of 2004 -5- Irinjalakkuda, with the appellant and the contraband. He had entrusted the appellant and the contraband to the Excise Inspector there on the next day, i.e., on 02-08-1999. The properties were produced by that Excise Inspector along with Ext.P6 List of Property. Under whose custody the contraband was kept till that was handed over to the Excise Inspector on 02-08-1999. PW4 did not say while he was in the witness box that it was under his safe custody. Whether the contraband including sample was under safe custody or not till it was handed over to the Excise Inspector? At what time the contraband and the appellant were handed over to the Excise Inspector? At what time he had produced them before the court? The Excise Inspector with whom allegedly entrusted the appellant and the contraband was not cited as a witness questioned by the investigating agency or examined before the court by the prosecution. In such a circumstance, there is no evidence as to whether the contraband was under safe custody till it was produced Crl. Appeal No.384 of 2004 -6- before the court by the Excise Inspector. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Single Judge of this Court observed as follows: “........In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13-09-1998 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ........” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. PW3, the Investigating Officer, claimed while he was in the witness box that he was the Excise Inspector of Irinjalakkuda Range Office during the period of occurrence in this case. But, it appears to be a wrong statement. Ext.P5 Crime and Occurrence Report was prepared by the Excise Inspector, Excise Range Office, Irinjalakkuda, on 02-08-1999. The signature appearing in Ext.P5 would go to show that that document was prepared by a different officer and not by PW3. Similarly, Ext.P6 List of Crl. Appeal No.384 of 2004 -7- Property prepared on 02-08-1999 and Ext.P8 Remand Report were also prepared by that different officer and not by PW3. These facts raise a question. Who was that Excise Inspector? The Excise Inspector who had registered the case by preparing Ext.P5 Crime and Occurrence Report and produced the properties by preparing Ext.P6 List of Property and the appellant by preparing Ext.P8 Remand Report before the court was neither questioned by the Investigating Officer nor cited as a witness for the prosecution nor examined for the prosecution in this case. Since this officer was not questioned by the Investigating Officer and not cited and examined by the prosecution, the defence was actually prejudiced. Because, the relevant questions with regard to the arrival of the appellant and the contraband, the custody of the contraband, the time of production of the contraband and other relevant questions could have been asked by the defence to him if he was in the witness box. The prosecution has not offered any explanation for not questioning that -8- Crl. Appeal No.384 of 2004 witness or not examining him. 6. One more aspect also has to be considered along with this. The defence had denied the prosecution version of the occurrence in this case. According to the appellant, no such detection or arrest or seizure of contraband had taken place. CWs.4 and 5 were cited for proving the alleged occurrence and preparation of Ext.P1 Seizure Mahazar. CW4 was examined as PW2. He had not supported the prosecution case. He was declared hostile to the prosecution. CW5 was not examined by the prosecution. In such a circumstance, non-questioning of the then Excise Inspector and his non-examination assume significance as they prejudice the accused by denying an opportunity to testify the prosecution version of occurrence. This, in fact, throws considerable shadow of doubt on the prosecution case. 7. The investigation of the case had been conducted by PW3. The records would go to show that there was Crl. Appeal No.384 of 2004 -9- inordinate delay in conducting the investigation of the case. The reason for the delay thus occurred in commencing, conducting and completing the investigation had not been explained by PW3 or by any other official witness in this case. The right to a speedy trial is a constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra** (AIR 2008 SC 3077)]. In the case on hand, such a constitutionally and statutorily guaranteed right of speedy trial had been infringed by the inordinate delay that occurred in conducting the investigation of the case. 8. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. Crl. Appeal No.384 of 2004 -10- (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” Section 50 mandates that every investigation into an offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward his report in accordance with Subsection 2 of Section 173 of Cr.P.C to the concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. No explanation was also offered for happening so. 9. In the case on hand, the occurrence was on 01-08-1999. Ext.P7 Certificate of Chemical Analysis dated 27-05-2000 had been received by the court on 08-09-2000. The Investigating Agency should have submitted the Final Crl. Appeal No.384 of 2004 -11- Report before the court soon after the receipt of Ext.P7 by the court. But, the Investigating Agency had taken nearly two years for submitting the Final Report before the court after the receipt of Ext.P7 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 10. For the foregoing reasons, it will only be unsafe to rely on the prosecution evidence and to convict the appellant for a serious offence under Section 58 of the Abkari Act. The appellant, at least, is entitled to benefit of doubt. Therefore, the conviction and sentence passed by the court below against him are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 58 of the Abkari Act. 11. In the result, the conviction and sentence passed by Crl. Appeal No.384 of 2004 -12- the court below against the appellant are set aside. He is acquitted of the offence under Section 58 of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE