Kanakunhappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936`** ## **CRL.A.No. 1653 of 2004 (A)** ## **---------------------------** **AGAINST THE JUDGMENT IN SC 396/2000 of SESSIONS COURT (ADHOC)-II, THALASSERY DATED 08-09-2004.** ## **APPELLANT(S)/ACCUSED:** **--------------------------------------** **KANAKUNHAPPAN, S/O.CHINDAN KOMARAM, KANNAMBADI, KUROOR DESOM, TALIPARAMBA TALUK, KANNUR.** ## **BY ADV. SRI.M.V.AMARESAN.** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.N.SURESH.** ## **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.Appeal No.1653 of 2004** **-----------------------------------------------Dated this the 20[th] day of October, 2014.** ## **J U D G M E N T** Conviction and sentence awarded by the learned Sessions Judge under Section 55(g) of the Abkari Act is challenged by the appellant in this appeal. Prosecution case, in short, is that on 19-09-1997 at 9.00 a.m., the appellant was found in possession of 25 litres of wash in an aluminium vessel kept in a cemetery. He was stirring the contents in the vessel at the time of detection. The Excise Officers and party on a tip-off went to the place of illicit distillation done by the appellant and apprehended him for violation of law. 2. Court below examined three witnesses on the side of prosecution and marked five documents. MO1 is the aluminium vessel used for keeping wash. There was no defence evidence. 3. Learned trial judge convicted the appellant for the **Crl.Appeal No.1653 of 2004 2** offence and sentenced him to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,00,000/-. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant submitted that the court below went wrong in convicting the appellant with the evidence available on record. The specific contentions raised by the learned counsel for the appellant are that there is inordinate delay in completing the investigation that the final report was filed only on 28-12-1999 and that the seizure mahazar Ext.P1, though a document prepared on the date of detection of the offence, was produced only on 10-01-2000. Learned counsel further contended that there is no explanation for the delayed production of material documents. It is the defence case that the crucial document like Ext.P1 seizure mahazar was later cooked **Crl.Appeal No.1653 of 2004 3** up to suit with the convenience of the prosecution. 6. Before delving into the legal aspects, we shall go through the evidence in this case. PW1 was the Excise Inspector, Payyannur. He was on patrol duty on 19-09-1997 at about 9.00 a.m. He was travelling along with his party in the official jeep. When they reached a place in Kuttoor Village, he received an information that the appellant was engaged in distilling illicit arrack. When PW1 and party went to the informed place, they found the appellant stirring the contents in an alluminium vessel having a capacity of about 30 litres. The vessel was containing about 25 litres of wash. After eliciting the identity of the appellant, he was arrested. From the contraband wash, sample was taken in a 375 ml bottle and rest of the same was destroyed. After sealing the bottle and completing the formalities, Ext.P1 mahazar was prepared. Thereafter, crime and occurrence report, **Crl.Appeal No.1653 of 2004 4** forwarding note (Exts.P3 & P4) were submitted before the court on 19-09-1997 itself. The accused was arrested from the place of detection and he was produced before the learned Magistrate. 7. PW1 was cross examined at length. He admitted in cross examination that except the wash in a vessel, no other implement used for distillation was present at the place of occurrence. To a question, PW1 answered that MO1 sample contains a label to show that it was recovered from the possession of the appellant. 8. PW2 is an independent witness, who was cited to prove the detection of the offence. He remained loyal to the prosecution in spite of strict cross examination. It was suggested that PW2 was a follower of a particular party and the accused was his political opponent. He denied the suggestion and asserted that he witnessed recovery of wash from the possession **Crl.Appeal No.1653 of 2004 5** of the accused. Learned counsel for the appellant drew my attention to one statement deposed by PW2 that two bottles were taken as samples at the time of detection. This evidence is against the version of PW's 1 and 3. PW3, the Investigating Officer stated that PW2 has not stated as above, when he was questioned. However, the defence did not mark a contradiction in this regard. 9. PW3 is the Investigating Officer. There is no serious challenge regarding the correctness or propriety of the investigation. 10. Learned counsel for the appellant contended that the delayed production of seizure mahazar caused prejudice to the appellant. The chance of cooking up documents to suit with the convenience of a prosecution cannot be rule out. Learned counsel for the appellant contended that the delayed production **Crl.Appeal No.1653 of 2004 6** of seizure mahazar caused prejudice to the appellant. The date of detection was on 19-09-1997. On that day, Ext.P1 seizure mahazar which came into being. First in point of time was not produced before the court. After investigation, the final report was filed on 28-12-1999. Even though the final report contains a statement that Ext.P1 seizure mahazar was produced along with the final report, the court's seal on Ext.P1 would show that it was produced on 10-01-2000. There is no explanation for the prosecution for the highly delayed production of Ext.P1. Learned counsel placed reliance on the following decisions to contend that under Section 102(3) Cr.P.C, the search and seizure should be intimated to the court forthwith. In _**Alex v. State**_ _**(2003(1) K.L.T 9 SN12), Dominic @ Thankachan & another v.**_ _**State ( 1989(1) KLJ 446), Alavi v. State of Kerala (1982 KLT 287)**_ and _**Raju v. State of Kerala (2012 KHC 877 (Vol.4 SN 28)**_ **Crl.Appeal No.1653 of 2004 7** are the decisions relied on by the learned counsel for the appellant to contend that the seizure mahazar should be reported to the court forthwith. 11. It is settled that the law mandates immediate reporting of search and seizure. In the absence of any satisfactory explanation for the delayed reporting of seizure, the . prosecution will have to fall in its own **debility** 12. Learned counsel further contended that though a sight plan was caused to be prepared, it was not marked at the time of trial. It is the case of the defence that, if sight plan had been produced, it would go against the recitals in Ext.P1 mahazar. Learned counsel further contended that though a sight plan was prepared in this case, it was not marked at the time of trial. It is argued that if the sight plan had been produced, the prosecution might have thought that it would go against the **Crl.Appeal No.1653 of 2004 8** recitals in Ext.P1 mahazar. That is why it was intentionally withheld. It is true that the final report shows a plan appended to it, but it was not produced in evidence or sought to be proved. 13. The legal infirmity attached to the belated production of Ext.P1 mahazar goes to the root of the strength of the prosecution case. Therefore, I find that in the absence of any proper explanation for the delay on the basis of the decisions relied on above, I find that the prosecution has to fail. 12. Learned counsel for the appellant submitted that the accused is a person aged about 77 years. Considering his age and financial position, learned counsel seeks indulgence of this Court in reducing the sentence. Reckoning the entire facts and circumstances, we find that the appellant is entitled to get mercy in the matter of sentence. **Crl.Appeal No.1653 of 2004 9** In the result, the appeal is partly allowed. Conviction of the appellant in S.C No.396/2000 on the file of the Additional Sessions Court, Adhoc II, Thalassery is set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk