K.P. Deepa v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937 CRL.A.No. 604 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 108/2005 of ADDL.SESSN.COURT (ADHOC-II) KASARAGODE DATED 20-02-2006 CP 101/2004 of J.M.F.C.-I,HOSDRUG ---------- APPELLANT/ACCUSED: ------------------------- K.P.DEEPA, AGED 34 YEARS, W/O.DAMODARAN, RESIDING AT ORI IN PADNA VILLAGE KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE EXCISE INSPECTOR NILESWAR EXCISE RANGE. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.604 of 2006 -----------------------------------------------Dated this the 11[th] day of February, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Kasaragod, for the offence under Section 55(a) of the Abkari Act. She was sentenced to undergo rigorous imprisonment for one year 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 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. 3. The prosecution case is briefly stated as follows: PW1, the Circle Inspector of Excise, Hosdurg, and his party and the excise party of the Excise Range Office, Neeleshwar, were on a joint patrol at Orimukku in Padanna Village at Crl. Appeal No.604 of 2006 -2- about 11.30 a.m. on 29-01-2002. While so, based on some information received by the Circle Inspector of Excise, Hosdurg, PW1, the Excise Preventive Officer, Excise Circle Office, Hosdurg, and his party left for patrol separately. While so, the appellant was seen carrying a plastic bag in her right hand. Seeing the excise party, she made an attempt to flee away. But, the excise party stopped her there. On examining the plastic bag carried by the appellant, 28 plastic packets each containing 100 ml. of arrack were found in it. Out of those 28 packets, 3 packets containing arrack were opened and collected the arrack in them in a 375 ml. bottle as sample. The sample bottle was sealed by PW1. The remaining packets containing arrack and the empty 3 packets were put into the said plastic bag. All these items were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Since the appellant is a woman and a woman police constable was not available, the appellant could not be arrested by PW1. Thereafter, PW1 Crl. Appeal No.604 of 2006 -3- and his party reached the Excise Range Office, Neeleshwar, with the properties and the records and produced them before PW5, the Excise Inspector of that Range Office. He has registered Crime No.4 of 2002 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report prepared by PW5. The properties and the records were produced before the Judicial First Class Magistrate's Court-I, Hosdurg. Ext.P4 is the List of Property and Ext.P5 is a copy of the Forwarding Note. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. Ext.P7 is the Eye Sketch prepared by PW6, Village Assistant, Padanna, showing the place of occurrence. The investigation of the case was conducted by PW7, the Excise Inspector, Excise Range Office, Neeleshwar. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. Crl. Appeal No.604 of 2006 -4- 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-II, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P7 and M.O.1 to M.O.3 series 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 has not adduced any evidence. 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 by the court Crl. Appeal No.604 of 2006 -5- below against her. It is the case of the prosecution that 28 packets of arrack were seized from the appellant at about 11.30 a.m. on 29-01-2002. Out of those packets, the contents of 3 packets were taken as sample in a 375 ml. bottle for the purpose of subjecting it to Chemical Analysis. The properties including the sample were produced before the court along with Ext.P4 List of Property. A Forwarding Note was also produced before the court for the purpose of subjecting the sample to Chemical Analysis. Ext.P5 is a copy of the Forwarding Note. 6. It is reported in Ext.P6 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also certified in this document that the seals on the bottle were intact and found tallied with the sample seal provided by the court. A comparison of the seal on the sample with the sample seal provided by the court will not assure that the sample analysed by the Chemical Examiner was really the sample of the contraband allegedly seized from the Crl. Appeal No.604 of 2006 -6- appellant. Such an assurance is possible only when the seal affixed on the sample bottle is compared with the sample seal provided by the investigating agency in the Forwarding Note. But, as clearly stated in Ext.P6, the Chemical Examiner compared the seal on the sample bottle with the sample seal of the court alone. Moreover, the prosecution has not examined the clerk who was dealing with the properties in the court at the relevant time. If such a person was examined, the fact whether the sample sent for chemical analysis was really the sample taken from the bulk of the contraband allegedly seized from the appellant could have been ascertained. But, that person was not examined. Therefore, on considering these facts, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 7. The alleged occurrence in this case has taken place on 29-01-2002. The investigation of the case was conducted by PW7. He has questioned the witnesses from 07-06-2004 Crl. Appeal No.604 of 2006 -7- to 18-06-2004 and submitted the Final report before the court on 26-06-2004. What was the reason for occurring such an inordinate delay in conducting the investigation of the case? Neither the Investigating Officer nor any other official witnesses offered any explanation for such a delay occurred. 8. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: - “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without -8- Crl. Appeal No.604 of 2006 unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. 9. Ext.P6 Certificate of Chemical Analysis was received by the court on 28-07-2003. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P6. But, the investigating agency has taken about 11 months for submitting the Final Report before the court after the receipt of Ext.P6 by the court. The inordinate delay that occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 10. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes Crl. Appeal No.604 of 2006 -9- speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077** ). In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. PWs.3 and 4 were cited and examined as independent witnesses for proving the occurrence. But, they have not supported the prosecution version of occurrence. Their evidence is of no use for the prosecution. The investigating agency has not prepared a Scene Mahazar in this case. PW6 who has prepared Ext.P7 Eye Sketch purportedly showing the place of occurrence admitted that no witness has shown to him the place of occurrence. When all the facts adverted to are considered, this is a case where the appellant, at least, is entitled to the benefit of doubt. 11. 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 -10- Crl. Appeal No.604 of 2006 alleged against her. 12. In the result, the conviction and sentence passed against the appellant by the court below 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 shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE