K.M. James v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 435/2006 OF ADDITIONAL DISTRICT COURT (ADHOC-I), MANJERI ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 144/2006 OF ASSISTANT SESSIONS ``` ## **`COURT, MANJERI`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` K.M.JAMES ``` ``` AMARAMBALAM, T.K.COLONY, NILAMBUR, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.BABU S. NAIR ``` ## **`RESPONDENT/RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` BY THE EXCISE INSPECTOR, NILAMBUR EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` SRI.RENJIT GEORGE, SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 2 ``` ## **ORDER** This revision is at the instance of the accused in S.C. No.144 of 2006 on the file of Assistant Sessions Judge, Manjeri, assailing the judgment in Crl.Appeal No.435 of 2006 on the file of Additional Sessions Judge (Adhoc-I), Manjeri, which upheld his conviction under Section 8(1) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that, on 23.06.2003 at 6.30 p.m., the revision petitioner was found in possession of 2 litres of illicit arrack, in a public road at T.K. Colony. The revision petitioner was arrested and the contraband was seized. On questioning him, he confessed about the involvement of the 2[nd] accused also. So, case was registered against both the accused and after investigation final report was filed against them under Section 8(1) of the Abkari Act. 3. On appearance of the accused persons before the ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 3 ``` trial court, charge was framed under Section 8(1) of the Abkari Act, read over and explained, to which, they pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined, Exts.P1 to P9 were marked and MO1 was identified from the side of prosecution, to prove its case. 4. On closure of prosecution evidence, the accused persons were questioned under Section 313 of Cr.P.C., and they denied all the incriminating circumstances brought on record. DW1 was examined and Ext.D1 was marked, from defence side. 5. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found the 2[nd] accused not guilty, and he was acquitted. The revision petitioner (A1) was found guilty under Section 8(1) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for two years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of six months. ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 4 ``` 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.435 of 2006. The appellate court, on re-appreciating the facts and evidence, upheld the conviction, but modified and reduced the sentence into simple imprisonment for one year and fine of Rs.1 lakh with a default sentence of simple imprisonment for a further period of six months, against which, he has preferred this revision. 7. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments of conviction and sentence by the courts below. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. PW1, the detecting officer and the excise team detected the offence on 23.06.2003. The revision petitioner was arrested at the spot and the contraband was seized. The sample of the contraband was sent for chemical ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 5 ``` analysis and the report was received on 27.04.2004. But, investigation was completed and the final report was filed only on 06.03.2006 i.e., after about three years of the occurrence. 10. Learned counsel for the revision petitioner contended that, the delay in conducting investigation and filing the final report is not satisfactorily explained by the prosecution and so, it is fatal to the prosecution. According to the revision petitioner, the allegation of seizure of contraband from his possession is a false story and the testimony of the independent witnesses will come to his rescue. It is true that, PWs.3 and 4, the independent witnesses, turned hostile to the prosecution, though they admitted their signature in Ext.P3 seizure mahazar. They denied to have witnessed the seizure of the contraband from the possession of the revision petitioner. The delay in investigation add strength to the contention of the revision petitioner that, since it was a case falsely foisted against ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 6 ``` him, the investigating agency took so much of time to shape the final report. Moreover, learned counsel for the revision petitioner would point out that, the occurrence was 20 years back, and the revision petitioner is now aged 68 years. At this age, that too after a long gap of 20 years, it may not be fair to send him to jail. 11. As directed by this Court, learned Public Prosecutor obtained a report from the Excise Inspector, Nilambur Range, with respect to the antecedents of the revision petitioner, after the incident in this case. It was reported that, no cases are there at his credit, except this case. 12. The fact that, there was a delay of about three years in filing the final report is to be viewed seriously. Even after getting the chemical analysis report, about two years delay occurred in filing the final report. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 7 ``` delay. Long delay in conducting investigation, in the absence of sufficient explanation, is fatal to the prosecution case. Here, no explanation whatsoever has been given by the prosecution, as to why there was delay of around three years in completing the investigation and filing the final report. Since there was unexplained delay in completing the investigation and filing the final report, it is fatal to the prosecution. [See **Moothedath Sivadasan v. State of Kerala** 2021 (1) KLT 744 , **Kumaran P v. State of Kerala** 2016(4) KLT 718, and **Chandran v. State** 2016 (5) KHC 650]. 13. The incident occurred on 23.06.2003, and the revision petition was pending before this Court for the last 15 years since 2008. For all these years, the revision petitioner was carrying the trauma of conviction in an abkari case. Moreover, for the last 20 years, no other crimes have been reported against the revision petitioner, as seen from the report submitted by the Excise Inspector, ``` CRL.REV.PET NO. 594 OF 2008 ``` ``` 8 ``` Nilambur Range. So, this Court finds it just and proper to set aside the conviction and sentence imposed on the revision petitioner by the courts below. 14. In the result, the revision petition is allowed, setting aside the conviction and sentence imposed on the revision petitioner by the courts below. He is found not guilty of the offence under Section 8(1) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** **SOPHY THOMAS JUDGE** LU