## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN**
**WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934**
**CRL.A.No. 612 of 2005 ( )**
**------------------------SC.161/2002 of ADDL.SESSN.COURT (ADHOC-II)KASARAGOD**
**APPELLANT/ACCUSED:: ---------------------**
**KELU, AGED 58 YEARS, S/O.KELU, KAMALATH BEEDU, KALLAR VILLAGE.**
**BY ADV. SRI.T.K.VIPINDAS**
**RESPONDENT/COMPLAINANT::**
**---------------------------**
**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE S.H.O., RAJAPURAM POLICE STATION.**
**BY ADV. PUBLIC PROSECUTOR, SMT.S.HYMA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **P.S.GOPINATHAN, J. -----------------------------Crl.A. No.612 OF 2005 -------------------------------Dated this the 20[th] day of June, 2012**
## **J U D G M E N T ~~~~~~~**
In Sessions Case No.161/2002 on the file of the Additional Sessions Judge (Ad hoc) II, Kasaragod, the appellant, who was the accused, was convicted for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of rupees one lakh with a default sentence of rigorous imprisonment for three months. The above conviction and sentence are under challenge in this appeal.
2. The appellant was prosecuted by the Sub Inspector of Police, Rajapuram Police Station, who was examined as PW3, for the above offence with a plea that on 30.9.2000 at 10 p.m. while PW6, the Assistant Sub Inspector of Police was in-charge of the Police Station got information that the appellant was dealing illicit liquor at his house at Kottodi in Kallar village. PW6 rushed to the spot and found the appellant standing under a coconut tree in his property comprised Survey No. 50 of Kallar village, near his house with few cardboard boxes. On
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inspection it was found that the cardboard boxes contained 48 bottles, each containing 180 ml and 24 bottles of 375 ml of No.1 Highway Fine Whisky, Indian Made Foreign Liquor. The appellant was arrested for which Ext.P8 arrest memo was prepared. The contraband was seized. From 180 ml bottles, 4 bottles were taken as samples. From 375 ml bottles, 2 bottles were taken as samples. The samples were sealed. Ext.P1 seizure mahazar was prepared. Returning to the Police Station, a case was registered as Crime No.177/2000 for offence under Section 55(a) of the Abkari Act. PW3, the Sub Inspector of Police, on resuming the office on the next day, took over the investigation. He completed the investigation and submitted a charge sheet alleging the above offence before the Judicial Magistrate of the First Class-I, Hosdurg. Finding that the offence alleged is exclusively triable by a court of session, the case was committed to the court of session, Kasargod. From there, it was made over to the Additional Sessions Judge. The Additional Sessions Judge issued process responding to which the appellant, who was later released on bail, entered appearance. Either side was heard and a charge for the above
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said offence was framed. When read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. PWs 1 to 6 were examined. Exts.P1 to P10 and MOs 1 and 2 series were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure. The appellant denied the incriminating evidence. No defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence arrived at a conclusion of guilty, consequent to which the impugned conviction and sentence were passed.
3. I have heard the learned counsel appearing for the appellant besides the learned Government Pleader. The evidence on record and the judgment under challenge were perused.
4. PW6 would depose that on 30.9.2000 at 10 p.m he was in- charge of the station and while so, he got the information that the appellant had been dealing illicit liquor at his house. He immediately rushed to the house of the appellant and reached
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there at 10.30p.m. The appellant was found standing under a coconut tree near his house. By his side, there were two cardboard boxes each containing liquor bottles as mentioned earlier. He would further prove the arrest of the appellant, seizure of the contraband, registration of the case and preparation of the property list. He also identified MOs 1 and 2. The process of sampling was also deposed by PW6.
5. PW1 is an attestor to Ext.P1. Though he would deny witnessing the seizure of the liquor from the property he would admit the signature in Ext.P1 and the presence of the appellant. He would further depose that the boxes were in front of the house of the appellant. PW2 is an attestor to Ext.P2 scene mahazar.
6. PW3 would depose that on 1.10.2000 he took over the investigation and he produced the appellant before the court with remand report. He got Ext.P3 possession certificate from PW4, Village Officer, Kallar wherein it is certified that the appellant was the owner in possession of 23.75 cents of property
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comprised in Survey No.50 of Kallar village. He got Ext.P4 site plan prepared through PW5, the Special Village Officer. He forwarded the material objects for chemical examination along with Ext.P5 and obtained Ext.P7 report from the chemical examiner, who had reported that two of the sample bottles contained 43.27% by volume of ethyl alcohol, one sample bottle contained 42.72% by volume of ethyl alcohol and three other sample bottles contained 42.89% by volume of ethyl alcohol.
7. One of the contention urged by the learned counsel for the appellant is that PW6 was an Assistant Sub Inspector of Police and therefore he is not authorised to arrest the appellant or to seize the illicit liquor. The evidence of PW6 coupled with Exts.P1 and P9 would show that he was the officer in-charge of the Police Station. Therefore, he arrested the appellant and seized the material objects as an officer in-charge of the Police Station. Though as an Assistant Sub Inspector of Police he is not an empowered abkari officer, he being an officer in-charge of the Police Station he was an empowered police officer. The issue is covered by the decision of this Court reported in Joy v. State of
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Kerala [2010(3) KLT 20] Therefore, I find the argument on that ground is devoid of merits.
8. The 2[nd] argument is that there was 19 days delay in producing the material objects, including the samples, before court and there is no explanation for the delay and that there was very possibility for tampering the material objects and samples during the intermittent period. The learned counsel in support of his argument, relied upon the decision of this Court reported in Ravi v. State of Kerala and another [2011(3) KHC 121(DB)]. Going by the above decision, it is seen that a Division Bench of this Court acquitted the appellant after entering into a finding that there was delay in producing the material objects before court and the possibility for tampering cannot be ruled out. On a critical scrutiny of the evidence on record, I find that in this case PW6 would depose that the material objects were entrusted to the station writer who is a Head Constable. The evidence on record is silent as to what happened thereafter. PW3 though would depose about the process of investigation, there is no mention as to who took the material objects to the
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court. He has no explanation for the delay of 19 days in producing the sample before the court. In the above circumstance, I have gone through Ext.P5 forwarding note. In Ext.P5 no specimen impression of the seal used for sealing the sample is affixed. Of course, I don't omit to note that in Ext.P7 the examiner had mentioned that the sample bottles were sealed and the seals were intact. It is not known as to how it could be certified that the seals were intact without referring the specimen seal. In the light of the above evidence, I find merit in the argument of the learned counsel for the appellant that the non-explanation of the delay is fatal to the prosecution. Therefore, I find that the appellant is entitled to an order of acquittal.
9. In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. The fine amount, if any realised, shall be refunded to him.
## **(P.S.GOPINATHAN, JUDGE)**
## **ps/23/6**
