K. Thambayi v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937 CRL.A.No. 1897 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 325/2003 of ADDL. SESSIONS COURT (ADHOC)III, KASARAGODE DATED 27-09-2006 APPELLANT/ACCUSED: -------------------- K.THAMBAYI, W/O.LATE CHANDRASEKHARAN, AGED 31 YEARS, KALLYAN ROAD, BELLA VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, HOSDURG POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1897 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Kasaragod, for the offence under Section 55(a) of the Abkari Act. She was sentenced to undergo simple imprisonment for four years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for six months. 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 respondents. CRA 1897/2006 2 3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Hosdurg Police Station, and his party were on patrol at Kanhangad Town and Mavungal at about 4 p.m. on 27.10.2000. When they reached Maikkanam on the Kalyan Road, the appellant was seen in the courtyard of a house carrying a 1.5 litre bottle. Seeing the police party, leaving that bottle she ran away. On examining that bottle, 1.25 litres of arrack was found in it. PW1 seized that bottle containing arrack under Ext.P1 Seizure Mahazar in the presence of witnesses. He had drawn two samples of 375 ml. each in two 375 ml. bottles from the bulk contained in that bottle. The sample bottles were sealed and labelled. Thereafter, PW1 and his party reached Hosdurg Police Station with the contraband including samples and the records. PW1 registered Crime No.466 of 2000 of that Police Station in respect of the occurrence. Ext.P2 is the FIR thus drawn by PW1. PW8, the Additional Sub Inspector of that Police Station, produced CRA 1897/2006 3 the contraband including samples and the records before the Judicial First Class Magistrate's Court-I, Hosdurg. 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 Regional Chemical Examiner's Laboratory, Kozhikode. PW8 had conducted the investigation of the case. He had gone to the place of occurrence and prepared Ext.P5 Scene Mahazar in the presence of witnesses. He had questioned the witnesses and recorded their statements. Thereafter, the investigation was continued by PW7, the Additional Sub Inspector of Police of that Police Station. He had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate had committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. The Assistant Sessions Court, Hosdurg, framed a charge against the appellant alleging the offence under Section 55(a) of the CRA 1897/2006 4 Abkari Act. The appellant pleaded not guilty of the charge. Subsequently, the case was transferred to the Additional Sessions Court (Ad hoc)-III, Kasaragod. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P8 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. She denied all the incriminating circumstances shown against her. The defence examined DW1 and marked Ext.D1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted her thereunder. She was heard on the question of sentence and imposed the sentence on her. 5. The appellant has raised various contentions challenging the conviction and sentence passed against her. It is the prosecution case that the appellant was found in possession of 1.25 litres of arrack in a 1.5 litre bottle at about 4.15 p.m. on 27.10.2000 and PW1 seized that bottle containing arrack under Ext.P1 Seizure Mahazar. But, the CRA 1897/2006 5 contraband including samples was produced before the court only on 2.11.2000 as could be seen from Ext.P6 List of Property. The evidence of PW8, the Investigating Officer, also shows that the property reached the court only on 2.11.2000. According to him, there was no special reason for occurring such a delay in producing the properties before the court. No other official witness examined in the case had offered any explanation for the delay that occurred in producing the contraband before the court. 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. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013(3)KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, PW8 categorically admitted that there was no special reason for occurring delay in producing the contraband before the CRA 1897/2006 6 court. Therefore, the delay that occurred in producing the contraband before the court remains unexplained by the prosecution. This unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone the appellant is entitled to an order of acquittal. 6. Where the contraband including samples was kept after it was seized by PW1 on 27.10.2000 and till it was produced before the court on 2.11.2000? No evidence is available. Moreover, there is no evidence as to under whose custody the contraband was kept during the said period. 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 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till CRA 1897/2006 7 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, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant. 7. PW3 was examined as an eye witness for proving the prosecution case of occurrence. He has not supported the prosecution case. He was treated as hostile to the prosecution. PWs.4 and 5 were examined as independent witnesses for proving the preparation of Ext.P5 Scene Mahazar. Both these witnesses did not support the prosecution case of preparation of Ext.P5. They were also treated as hostile to the prosecution. It is specifically stated in Ext.P1 Seizure Mahazar that the appellant was identified as informed by PW3 and another. PW3 did not support the CRA 1897/2006 8 prosecution version of occurrence. The other witness was not examined. There is absolutely no evidence as to how the Investigating Officer in this case had identified the accused. The prosecuting agency failed to prove to the satisfaction of the court as to how the appellant was identified as the real accused in this case. On considering the facts adverted to in this judgment, it is unsafe to convict the appellant for a serious offence under Section 55(a) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. She is entitled to an order of acquittal of the offence alleged against her. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. She is acquitted of the offence under Section 55(a) of the Abkari Act. She is set at liberty. The bail bond executed by her CRA 1897/2006 9 shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge