Joseph alias Jose S/o Thomas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937 CRL.A.No. 912 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 24/2004 of SPL. COURT (NDPS ACT CASES), THODUPUZHA DATED 06-04-2006 CP 101/2001 of J.M.F.C.,NEDUMKANDAM ------- APPELLANT/ACCUSED: ------------------------- JOSEPH @ JOSE S/O.THOMAS, AGED 40 YEARS, PANTHANANIKKAL VEEDU COMBAMUKKU BHAGAM, RAMAKKALMEDU KARA PARATHODU VILLAGE. BY ADV. SRI.JOICE GEORGE RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.912 of 2006 -----------------------------------------------Dated this the 16[th] day of February, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court, Thodupuzha, for the offences under Sections 55(a) and 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for six months for the offence under Section 55(a) of the Abkari Act. No separate sentence was awarded for the offence under Section 8(1) and (2) of the Abkari Act. Challenging the conviction and sentence 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 Sub Inspector of Police, Nedumkandam Police Crl. Appeal No.912 of 2006 -2- Station, and his party were on patrol at about 7.30 p.m. on 15-07-2001. While so, PW4 received reliable information that the appellant was selling arrack. Therefore, the police party reached Combamukku when the appellant was seen carrying a 5 litre black jerrycan and a glass tumbler in his hands. On examining the jerrycan, about 4 litres of arrack was found in it. Since the appellant has committed an offence under the Abkari Act, he was arrested then and there by PW4 after preparing Ext.P4 Arrest Memo. PW4 has drawn two samples of arrack in two 180 ml. bottles from the bulk contained in the jerrycan. The sample bottles were sealed. The jerrycan containing the arrack was also sealed. The jerrycan, samples and the glass tumbler were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Nedumkandam Police Station with the appellant, properties and the records and registered Crime No.182 of 2001 of that Police Station in respect of the occurrence. Ext.P5 is the F.I.R. thus drawn by PW4. The Crl. Appeal No.912 of 2006 -3- appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Nedumkandam. Ext.P6 is the List of Property and Ext.P7 is a copy of the Forwarding Note. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The investigation of the case was conducted by PW4. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was recalled and made over to the Additional Sessions Court, Thodupuzha. The court below framed a charge against the appellant alleging the offences under Sections 55(a) and 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined Crl. Appeal No.912 of 2006 -4- PWs.1 to 4 and marked Exts.P1 to P8 and M.Os.1 to 3 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has examined DWs.1 and 2. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(a) and 8 (1) and (2) 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 prosecution case that the appellant was found in possession of 4 litres of arrack at about 7.30 p.m. on 15-07-2001. He was arrested then and there by PW4 and the contraband was seized under Ext.P1 Seizure Mahazar. Two samples were drawn from the bulk of arrack contained in the jerrycan. Thereafter, PW4 and his party reached Nedumkandam Police Station with the appellant, contraband Crl. Appeal No.912 of 2006 -5- including the samples and the records. Ext.P1 Seizure Mahazar, Ext.P4 Arrest Memo and Ext.P5 F.I.R. were produced before the court on 16-07-2001. But, the jerrycan containing bulk of arrack and the two samples of arrack were produced before the court only on 10-08-2001. Similarly, the Forwarding Note for subjecting the sample to Chemical Analysis was produced only on 06-08-2001. Ext.P7 is a copy of the Forwarding Note. What was the reason for occurring such a long delay in producing the properties? PW4 explained that the properties were under his safe custody till they were produced before the court. He also stated that owing to busy nature of his work, the delay occurred in producing the properties before the court. Whether such an explanation offered by PW4 is sufficient and satisfactory? PW4 has not given such an explanation in any of the documents including Ext.P6 List of Property produced before the court. He has produced Exts.P1 Seizure Mahazar, P4 Arrest Memo and P5 F.I.R. on 16-07-2001. Then, Crl. Appeal No.912 of 2006 -6- he was not facing any busy nature of work preventing him from producing those documents before the court. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW4 did not tell the court as to what was the busy nature of work that prevented him from producing the contraband till 10-08-2001 after its seizure on 15-07-2001. A bald statement that he was busy with work cannot be accepted as a satisfactory explanation for such an inordinate delay that occurred in producing the properties before the court. 6. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW4 is not proper and Crl. Appeal No.912 of 2006 -7- satisfactory. The explanation of PW4 that the properties were under his safe custody till they were produced before the court will not come to the rescue of the prosecution. In the facts and circumstances, the inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case. 7. It is reported in Ext.P8 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also certified in this document that the seals on the packet were intact and found tallied with the sample seal provided. Which sample seal is meant here? A copy of the letter forwarded by the learned Magistrate to the Joint Chemical Examiner is available among the records. It is specifically noted in this letter that the sample seal used to affix on the packet is also enclosed with the letter. Ext.P8 says that the seals on the packet were intact and found tallied with the sample seal provided. Therefore, it naturally follows that the comparison of the seals appeared on the packets was made Crl. Appeal No.912 of 2006 -8- by the Chemical Examiner with the sample seal provided from the court. The seal of the Detecting Officer was affixed not on the packet, but on the sample bottle. It is so described in Ext.P7 copy of the Forwarding Note. Ext.P8 does not say that the comparison of the seal appeared on the sample bottle was made with the sample seal provided in the Forwarding Note. Therefore, there is no assurance that the Chemical Examiner, in fact, examined really the sample of the arrack allegedly seized from the appellant. Moreover, the samples as well as the Forwarding Note describing the sample reached the court only after occurring an inordinate delay. The facts already stated with regard to the delay in producing the properties before the court will be applicable to the delayed production of the samples as well as the Forwarding Note describing the sample. For this reason also Ext.P8 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. For the foregoing reasons, the conviction and -9- Crl. Appeal No.912 of 2006 sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offences under Sections 55(a) and 8(1) and (2) 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