K. Vijayan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936 CRL.A.No. 367 of 2004 (A) -------------------------- AGAINST THE JUDGMENT IN SC 431/2000 of ADDL.DISTRICT &B SESSIONS COURT (ADHOC-II), KOZHIKODE DATED 07-01-2004 APPELLANT/ACCUSED:: K. VIJAYAN, KUTTOTH HOUSE, VELOOR AMSOM, KONGANOOR DESOM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN ## RESPONDENT/RESPONDENT:: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ========================== Crl. Appeal No.367 of 2004 =========================== Dated this the 26[th] day of May, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)II, Kozhikode, for the offence under Section 55 (a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo rigorous imprisonment for six 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. CRL.A. 367/2004 2 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Atholi Police Station, and his party were on patrol at 6.40 p.m. on 06-04-1999 at Athanikkal Angadi. While so, receiving reliable information that the appellant was selling arrack on the bank of Kongannur-Parakkulam Thodu, PW5 and his party reached that place by 6.50 p.m. and found the appellant possessing a five litre jerrycan. The appellant was stopped there by the police party and the jerrycan was subjected to examination when it was found that it contained three litres of arrack. Soon the appellant was arrested by PW5 preparing an Arrest Memo. PW5 had taken two samples of 375 ml. each of arrack in two bottles, from the bulk contained in the jerrycan. Those samples and the residue were sealed and seized by PW5 under Ext.P1 Seizure Mahazar in the presence of witnesses. He had also seized a glass tumbler smelling arrack from there under that Mahazar. Thereafter, PW5 and the police party returned to Atholi Police Station with the appellant and the contraband and PW5 registered Crime CRL.A. 367/2004 3 No.66 of 1999 of that Police Station against the appellant incorporating the offences under Sections 55(a) and 58 of the Abkari Act. The case was investigated by CW9, the Sub Inspector of Police, Balussery Police Station. The Final Report in the case was prepared and submitted before the court by PW4, the Sub Inspector of Police, Atholi Police Station. 4. The appellant pleaded not guilty of the charge framed against him alleging the offence under Section 55(a) of the Abkari Act. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P8 and M.Os.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, convicted the appellant for the offence under Section 55(a) and, after hearing him on the question of sentence, imposed the sentence on him. 5. The appellant has raised various contentions in this appeal. But, at the hearing, the learned counsel for the appellant has raised only two contentions. (1) According to CRL.A. 367/2004 4 the prosecution, the seizure of the contraband was effected at 7.00 p.m. on 06-04-1999 under a contemporaneous Seizure Mahazar prepared in the presence of witnesses. But, the contraband along with the samples reached the court only on 11-05-1999. There was a delay of more than one month in reaching the contraband and its samples in the court. No explanation has been offered by the prosecution for this inordinate delay. This is fatal to the prosecution. (2) Where the contraband and the samples were kept by the police during the period between 06-04-1999 and 11-05-1999? No answer was forthcoming. Under whose custody they were kept during that period ? No answer was forthcoming. Therefore, it cannot be found that the jerrycan containing arrack and the bottles of samples produced along with the same were the arrack allegedly seized and the samples taken on 06-04-1999 under Ext.P1 Seizure Mahazar. This is strengthened by the fact that CW4, the Investigating Officer in this case, was not examined by the prosecution. In the facts and circumstances of this case, the CRL.A. 367/2004 5 non-examination of the Investigating Officer has caused prejudice to the appellant and hence, it is fatal to the prosecution. 6. The contraband was allegedly seized and the samples were taken by PW5, the Sub Inspector of Police, at 7.00 p.m. on 06-04-1999 under Ext.P1 Seizure Mahazar. Ext.P5 is the list of property with which the jerrycan containing arrack, two bottles of its samples and a glass tumbler were produced before the court. It can be seen from Ext.P5 that such production was on 11-05-1999. A combined reading of Exts.P1 and P5 would go to show that the seizure was effected on 06-04-1999 and the items so seized were produced before the court only on 11-05-1999. Therefore, there was a delay of more than one month in the production of the contraband, its samples and the other item seized under Ext.P1. The delay as such is not fatal to the prosecution, if they are able to properly explain the cause of the delay occasioned. But, in this case no such explanation justifying the delay has been offered by the prosecution. CRL.A. 367/2004 6 7. PW5, the Sub Inspector of Police, Atholi Police Station, had effected the seizure under Ext.P1. The items so seized were produced before the court on 11-05-1999 by CW9, the Sub Inspector of Police, Balussery Police Station, who was the Investigating Officer of the case. According to the prosecution, the items seized under Ext.P1 were entrusted to CW9, the Investigating Officer, on 07-04-1999 itself. After such entrustment of the properties, admittedly, they were produced before the court only on 11-05-1999. Whether those properties were in the possession of CW9 or in the possession of somebody else? If they were in the possession of CW9, he was the competent person to depose the same before the court. If they were entrusted to somebody else by him, then also CW9 was the competent person to depose the same before the court. Whatever may be the explanation for the non-examination of CW9, the fact remains that CW9 was not examined in the case. He is the competent person to tell the court about the possession of the properties seized after their entrustment to him on CRL.A. 367/2004 7 07-04-1999 and for the delay occurred in producing them before the court. But, such a person was not examined. He was the Investigating Officer. By the non-examination of CW9, the appellant was prejudiced by way of preventing him from cross examining CW9 in respect of these material facts concerning the properties allegedly seized by PW5 on 06-04- 1999. Therefore, in the facts and circumstances, the nonexamination of CW9 is fatal to the prosecution. 8. The prosecution has a duty to explain the reason for the delay occurred in producing the properties 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 reasons stated therein, that an unexplained delay of a single day as fatal to the prosecution case. In Narayani v. Excise Inspector (2002 (3)KLT 725), a learned single Judge of this Court observed as follows: CRL.A. 367/2004 8 “..............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 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. 9. In the case on hand, the delay intervened in the production of properties from 06-04-1999 to 11-05-1999 has not been explained by the prosecution. The competent person to explain such a delay, namely CW9, was not examined by them. There is no evidence as to the custody of the properties after 07-04-1999 till 11-05-1999. In view of these facts, following the rulings above mentioned, the appellant is entitled to the benefit of doubt and the CRL.A. 367/2004 9 impugned conviction and sentence are liable to be set aside. The appellant is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. The amount, if any, deposited by the appellant shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks