K. Kumaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 CRL.A NO. 983 OF 2014** **AGAINST THE JUDGMENT IN SC 316/2011 OF ADDITIONAL DISTRICT & SESSIONS COURT - I, KASARAGOD** ## **APPELLANT/ACCUSED:** K.KUMARAN AGED 48 YEARS S/O LATE KALLALAN, NAYIKKAYAM, BELUR VILLAGE, HOSUDRG TALUK, KASARAGOD DISTRICT BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM ## **RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31. 2 EXCISE INSPECTOR HOSDURG EXCISE RANGE, PIN - 673 001. ## **OTHER PRESENT:** SRI ARAVIND V MATHEW-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON 6.10.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.983/14 ## -:2:- J U D G M E N T Dated this the 6[th ] day of October, 2021 This is an appeal u/s 374(2) of the Code of Criminal Procedure against the judgment of conviction and sentence passed by the Additional Sessions Court- I, Kasaragod (for short, 'the court below') in SC No.316/2011 dated 4[th] September, 2014. 2. The accused/appellant faced trial for an offence punishable u/s 8(1) and (2) of the Abkari Act. The prosecution case in short is that, on 3/6/2009, at about 7.30 a.m., the accused was found in possession and transit of 5 litres of illicit arrack in a white plastic can of 5 litres capacity through the road passing on the western side of residential house bearing No.VII/575 of Kodam Belur Panchayat in contravention of the Abkari Act and the Rules. 3. PW4, the Assistant Excise Inspector of Hosdurg Excise Range, along with PW1, the Preventive Officer, while conducting patrolling duty on 3/6/2009 at about 7.30 a.m., found the accused walking through Parappa road carrying a white plastic can. They intercepted the accused and a white plastic can filled with 5 litres Crl.Appeal No.983/14 -:3:- of illicit arrack was seized. The accused was arrested at the spot. The sample of arrack was taken in a bottle. It was sealed, packed and labelled in the presence of the witnesses who were examined as PW2 and PW3. Ext.P1 mahazar was prepared at the spot. Ext.P2 arrest memo was prepared at the time of arresting the accused. PW4 took the accused as well as the seized contraband article to Excise Range Office and registered crime against the accused. Ext.P6 is the crime and occurrence report. The sample was sent for chemical analysis and after the analysis, report was received which was marked as Ext.P13. PW5, the Assistant Excise Inspector of Hosdurg conducted the investigation. After completing the investigation, he filed final report before the learned Magistrate. The learned Magistrate after complying with the statutory formalities committed the case for trial to the Court of Sessions. 4. The accused appeared before the court below. After hearing both sides, the court below framed charge against the accused u/s 8(1) and 8(2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. Crl.Appeal No.983/14 -:4:- 5. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P13. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. No defence evidence was adduced. After trial, the court below found the accused guilty u/s 8(1) and 8(2) of the Abkari Act. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of `1,00,000/-, in default, to suffer simple imprisonment for six months as per the impugned judgment. The said judgment is under challenge in this appeal. 6. I have heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant contending that there is no acceptable legal evidence to prove the guilt of the accused other than the interested testimony of official witnesses. The counsel further submitted that there is non compliance of S.53A of the Abkari Act. The counsel also submitted that there is Crl.Appeal No.983/14 -:5:- long delay in completing the investigation and filing the final report. 8. PW4 is the Assistant Excise Inspector of Hosdurg Excise Range who detected the offence. PW1 is the Preventive Officer who accompanied PW4 at the time of detection. PW2 and PW3 are independent witnesses who attested Ext.P1 seizure mahazar. PW5 is the then Assistant Excise Inspector who conducted the investigation and filed final report. PW1 and PW4 deposed that on 3/6/2009 at 7.30 a.m., they were conducting patrol duty and when they reached at Naikayam of Belur Village, the accused was found walking carrying a can in his hand. They intercepted the accused and the can was seized. When it was opened, it was found that it contained illicit arrack. They further deposed that PW4 drew sample of 300 ml in 375 ml bottle and the sample bottle was properly labelled and sealed. He prepared Ext.P1 mahazar at the spot. He further deposed that, thereafter, he went to Excise Range Office along with the accused and the contraband articles and Ext.P6 crime and occurrence report was registered. On the same day, he produced the seized article at Crl.Appeal No.983/14 -:6:- the court as per Ext.P7 property list. On the very same day, the sample was sent for chemical analysis as evident from Ext.P8 forwarding note. Ext.P13 is the chemical analysis report. It has been marked through PW5 who conducted the investigation. Ext.P13 would show that the sample contained 28.17% by volume of ethyl alcohol. 9. Even though PW1 and PW4 were cross-examined in length, nothing tangible has been brought out to discredit their testimony. The search, seizure and arrest of the accused were amply proved through the evidence of PWs 1 and 4. The defence has not been able to cause any dent to their evidence. The learned counsel for the appellant submitted that no reliance can be placed on the testimony of PWs 1 and 4 since they are official witnesses and the two independent witnesses (PW2 and PW3) examined did not support the prosecution. It is trite that the statement of witness of a police department or excise department cannot be rejected only on the ground that the independent witnesses examined on behalf of the prosecution did not support the case of the prosecution and turned hostile and if Crl.Appeal No.983/14 -:7:- no infirmity is found in the statement of the witnesses examined on behalf of the prosecution belonging to the police or excise department, reliance can be placed on the testimony of such witnesses for basing the conviction. PW1 and PW4 credibly deposed about the arrest of the accused and seizure and sampling of the contraband. The sequence of events were spoken by them in a fairly and inspiring manner. PW1 and PW4 consistently deposed that 300 ml sample was drawn in a bottle of 375 ml at the place of occurrence and the sample was properly sealed and labelled. The testimony of PWs 1 and 4 are not shown to suffer from any infirmity as to justify an approach with intrinsic doubt and suspicion. PW2 and PW3 are witnesses to Ext.P1 mahazar. They admitted that they affixed the signature in Ext.P1. But they deposed that they were made to sign in Ext.P1 by the police from elsewhere. From the evidence of PW2 and PW3, it is clear that they were attempting to cover up the truth and tendering the evidence in favour of the accused to the extent possible. Therefore, there is no reason to discard the evidence of PW1 and PW4 only on the ground that they are excise officials Crl.Appeal No.983/14 -:8:- and, non official witnesses, PW2 and PW3, did not support the prosecution case. In these circumstances, I am of the view that the evidence of PW1 and PW4 regarding the recovery of the contraband article from the possession of the accused, sampling and the arrest of the accused at the time and place as alleged by the prosecution can safely be accepted. 10. The evidence of PWs 1 and 4 gets corroboration from Ext.P1 mahazar prepared at the spot. The evidence on record would show that the sample drawn was properly packed, sealed and labelled and it reached the court and sent for analysis on the same day itself. The sample was in a tamper proof condition as evident from Ext.P7 property list and Ext.P8 forwarding note. Ext.P13 chemical analysis report would show that the seals of the packets of the bottle were intact and tallied with the sample seal provided. Ext.P13 further shows that the sample received for analysis was clear and colourless liquid and that it contained 28.17% by volume of ethyl alcohol. 11. The learned counsel for the appellant submitted that there is violation and non compliance of the mandates laid down Crl.Appeal No.983/14 -:9:- in S.53A of the Abkari Act. According to the counsel, Ext.P9 inventory was prepared by PW4, the Assistant Excise Inspector who is not a competent officer. The counsel also submitted that Ext.P12 eye sketch was prepared by PW5, the Abkari Officer who conducted the investigation and not by a revenue official. By virtue of SRO No.361/2009 dated 8/5/2009, PW4 is competent to act as Abkari Officer. The oral evidence of PW4 shows that the remaining quantity of the arrack was produced before the Deputy Excise Commissioner and the inventory list was prepared. A perusal of Ext.P9 coupled with the evidence of PW4 would show that even though it was prepared by PW4, it was signed by Deputy Excise Commissioner, who is admittedly an authorised officer. Ext.P9 would further show that the Magistrate has certified the correctness of the inventory on 9/10/2009. Therefore, the argument by the learned counsel for the appellant that there is non compliance of S.53A must fail. It is true that Ext.P12 eye sketch was not prepared by a revenue authority. It was prepared by PW5. When PW5 was cross-examined, even no suggestion was put against the genuineness of Ext.P12. Even if Crl.Appeal No.983/14 -:10:- Ext.P12 is discarded, the evidence of PW1 and PW4 and the other evidence on record would clearly prove the place of occurrence. The fact that Ext.P12 was not prepared by a revenue official is insignificant. The learned counsel for the appellant lastly submitted that there is undue delay in recording the statement of witnesses, completing the investigation and filing final report, the benefit of which should go to the accused. The detection was on 3/6/2009. The final report was filed on 11/4/2011. The Apex Court in _**Ranbir and Others v. State of Punjab**_ (AIR 1973 SC 1409) has held that the delay in examining a witness during investigation is material only 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 Apex Court in _**Ganesh Bhavan Patel v. State of Maharashtra**_ (AIR 1979 SC 135) and it was held thus: _“Delay may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking_ Crl.Appeal No.983/14 -:11:- _time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced."_ Relying on these decisions, the Single Bench of this Court in _**Santhosh T.A. and Another v. State of Kerala**_ (2017 (5) KHC 107) has held that for the Court to take notice of the delay in recording statements of witnesses, it is necessary for the defence to question the investigating officer about it so that he may give an explanation for it. If that is not done, the Court will ignore the delay. Absolutely no such question was put to the investigating officer. The appellant has no case that the investigating officer was deliberately delaying the investigation with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. Therefore, the delay in recording the statement of the witnesses and completing the investigation cannot be said to be fatal. 12. For all these reasons, I endorse the finding of the court below that the prosecution has succeeded in proving that the accused has committed the offence as alleged beyond reasonable doubt. 13. The accused was sentenced to undergo simple Crl.Appeal No.983/14 -:12:- imprisonment for a period of one year and to pay a fine of `1,00,000/-, in default, to suffer simple imprisonment for six months as per the impugned judgment. Having anxiously considered the entire facts and circumstances of the case and penological objective of the statute, I am of the view that the sentence imposed by the court below is absolutely reasonable. The appeal fails and it is only to be dismissed. In the result, the appeal is dismissed confirming the conviction entered and sentence passed against the appellant. **Sd/DR. KAUSER EDAPPAGATH JUDGE** Rp //True copy// PS to Judge