Joseph @ Baby s/o George v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **CRL.A NO. 2212 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 366/2004 OF ADDITIONAL SESSIONS** **COURT (ADHOC)-II, THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** JOSEPH @ BABY S/O GEORGE,ARACKAL VEEDU, PULICKATHADAM BHAGOM, EDADU KARA, ILAPALLY VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2212 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2212 of 2006** --------------------------------------Dated this the 2[nd] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 25-10-2006, passed by the learned Additional Sessions Judge (Adhoc-II), Thodupuzha in Sessions Case No.366/2004, the accused has preferred this appeal. 2. The appellant was accused No.2 and a Juvenile aged 12 years, was accused No.1 in F.I.R No.281/2002 of Kanjar Police Station. 3. The trial court convicted the appellant (hereinafter referred to as accused) for the offence punishable under Section 8(2) of the Kerala Abkari Act. 4. The prosecution case is that on 19-11-2002 at 9.40 a.m., on getting reliable information that illicit arrack was stored in a building No.127 of Arakkulam Grama Panchayath at Pulickathadam, the police party led by PW1, Sub Inspector of Police, Kanjar Police Station, searched the building and the premises and detected illicit arrack in a bottle inside the house and a can on the paramba. PW1 seized 450 ml. of arrack in a 750 ml. bottle and 35 litres of wash in a Crl.A No.2212 of 2006 3 can from the possession of the accused. 5. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act before the JFCM-II, Thodupuzha. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court (Adhoc-II), Thodupuzha. On appearance of the accused charges were framed against him for the offences punishable under Sections 8(2) and 55(g) of the Kerala Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 6. The prosecution examined PW1 to PW5 and proved Exts.P1 to P7 and MO1 to MO12. 7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing arguments addressed from both sides, found that Crl.A No.2212 of 2006 4 the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs.1 Lakh. 8. Heard Sri.C.M.Tomy, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent/State of Kerala. 9. The learned counsel for the appellant raised the following grounds to challenge the judgment of conviction and sentence. - (i) There is inordinate delay in the production of properties allegedly recovered from the scene of occurrence before the court. - (ii) The delay in conducting chemical analysis has not been satisfactorily explained. 10. The learned public prosecutor submitted that prosecution could well establish the offence against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **The Point** 12. PW1, the Sub Inspector of Police, Kanjar, detected the 5 Crl.A No.2212 of 2006 offence. He has given evidence that, on 19-11-2002, on getting reliable information that the accused was engaged in distilling arrack at Pulickathadam he proceeded to the place of occurrence. According to PW1, he searched the residence of the accused at 9.15 a.m. and found a gunny bag, on the south western corner of the bedroom on the southern side of the house, containing a bottle filled with illicit arrack. From the nearby abandoned land, situated about 200 meters from the residence of the accused, PW1 recovered two aluminium vessels, a steel vessel and two kerosene stove, etc. He also recovered a can containing 35 litres of wash. According to PW1, before conducting search he had prepared a search memo and the properties were recovered as per Ext.P1 search list. PW1 collected samples from the arrack and wash and sealed them. He arrested the accused and a boy aged 12 years who had pointed out the place where the contraband articles were kept on the abandoned land. The Juvenile was made Accused No.1 and the present accused was made Accused No.2. 13. PW1 entrusted the properties and the accused to PW5, the Inspector of Police, Kaliyar. 14. PWs 2 to 4, the independent witnesses, did not support the 6 Crl.A No.2212 of 2006 prosecution case. PW5, the Inspector of Police, Kaliyar, who was in charge of the Inspector of Police, Kanjar produced the properties recovered from the place of occurrence before the court on 25-11-2002. He submitted final report before the court on 21-05-2004. 15. The learned counsel for the accused submitted that though the properties allegedly recovered from the scene of occurrence were entrusted to PW5 on 19-11-2002, he produced the same before the court only on 25-11-2002 and the delay in the production of the properties before the court has not been explained. There is no explanation from the part of PW5 as to the delay caused in the production of the properties before the court. 16. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held as follows: _“8. We, therefore, answer the reference as follows:_ _1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ Crl.A No.2212 of 2006 7 The Division Bench held that the production of the properties should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the property. There is no evidence to show that these properties remained in the safe custody of PW5 from 20-11-2002 to 25-11-2002. Unexplained delay in the production of the properties including the bottles containing the sample would lead to the conclusion that tampering with the samples could not be ruled out. 17. The samples collected reached the Chemical Examiner's laboratory on 02-12-2002. The chemical examiner analysed the sample only on 11-11-2003. The prosecution has not offered any explanation as to the delay in the analysis of the samples. This Court in _**Krishnadas v. State of Kerala**_ [2019 KHC 191] had considered a case in which the sample reached the laboratory in September 2003, which was subjected to analysis only in 2004. In that case, this Court held that, in the absence of any explanation for the delayed examination a suspicion arises and the benefit of which must go to the accused. In the instant case also the delay in the analysis of the sample remains unexplained. This delay raises a suspicion on the Crl.A No.2212 of 2006 8 credibility of the results of analysis of the sample, the benefit of which must go to the accused. 18. The court below failed to take into account the above referred vital circumstances. 19. Resultantly, I hold that the accused is entitled to benefit of doubt. The conviction and sentence passed against the accused are not sustainable. In the result, the accused is acquitted of the charge levelled against him. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS