Krishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936 CRL.A.No. 1761 of 2005 --------------------------- AGAINST THE JUDGMENT IN SC 686 of 2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 06-10-2005 ## APPELLANT/ACCUSED.: ------------------------------------------ KRISHNAN, S/O.KUNHIRAMAN, AGED 55 YEARS, KARUVANKANDY HOUSE, PONMERY AMSOM, PARAMBIL DESOM VADAKARA TALUK. BY ADV. SRI.SUNNY MATHEW ## RESPONDENT/COMPLAINANT.: ------------------------------------------------------ STATE OF KERALA, THROUGH THE EXCISE INSPECTOR, NADAPURAM EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = CRL.A. No. 1761 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted for the offence under Section 8(2)/8(1) of the Abkari Act by the Additional Sessions Court(Adhoc) II, Kozhikode. He was sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three 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. 1761/2005 2 3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer, Excise Range Office, Nadapuram, and his party were on patrol at Viladhapuram in Purameri Village, at about 11.30 a.m. on 11-9-2001. While so, the appellant was seen coming from the opposite side carrying a black jerrycan of 5 litre size in his right hand. Seeing the Excise Party, the appellant attempted to flee away. But, he was stopped there by the Excise Party. On examining the jerrycan, it was found that it contained about 3 litres of illicit arrack. Since he has committed an offence, he was arrested then and there preparing Ext.P2 Arrest Memo in the presence of witnesses. The jerrycan containing illicit arrack was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. He has taken a sample of 200 ml. of illicit arrack from the bulk in a 375 ml. bottle and sealed the same. The jerrycan containing the arrack was also sealed by him. Both the sample and the jerrycan were labelled. Thereafter, PW1 reached the Excise CRL.A. 1761/2005 3 Range Office, Nadapuram, with the appellant, contraband items and records and entrusted them to PW6, the Excise Inspector. PW6 has registered Crime No. 8 of 2001 of that Range Office. Ext.P4 is the Crime and Occurrence Report thus prepared by PW6. PW6 has produced the appellant along with Ext.P5 Remand Report before the Magistrate on the same day. He has also produced the records before the court. He has produced the contraband items along with Ext.P6 List of Property before the court on 12-9-2001. The investigation of the case was conducted by PW5, the Excise Inspector, Excise Range Office, Nadapuram. He has questioned the witnesses and recorded their statements. After completing the investigation, he has submitted the Final Report before the Judicial First Class Magistrate's Court, Nadapuram. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kozhikode, and, from there, it was made over to CRL.A. 1761/2005 4 the Assistant Sessions Court, Vadakara. Later, it was withdrawn and made over to the Additional Sessions Court (Adhoc)II, Kozhikode. The court below framed a charge against the appellant alleging the offence under Section 8 (2)/8(1) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P8 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. DWs.1 and 2 were examined and Ext.D1 series were marked on the side of defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(2)/8(1) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction an sentence passed against him. PW1 is the Detecting Officer. PW3 is another Excise CRL.A. 1761/2005 5 Preventive Officer who accompanied PW1 at the time of detection. Both these official witnesses, more or less, supported the prosecution version of occurrence. PW4 and CW4 were cited by the prosecution as independent occurrence witnesses for proving their case. CW4 was not examined. PW4 did not support the prosecution case. He stated that he had not witnessed the occurrence. DW1 is the appellant himself. DW2 examined on the side of defence explained a different story. The question to be considered and answered is whether relying on the evidence given by the Excise Officials PWs.1 and 3, a conviction of the appellant can be entered for a serious offence under Section 8(2)/8(1) ? 6. Ext.P6 is the List of Property prepared by PW6 and produced by him before the court along with the contraband including the sample. The properties were produced before the court, as evident from Ext.P6, on 12-9-2001. It can be seen from Ext.P6 that the office of the court made a CRL.A. 1761/2005 6 submission before the learned Magistrate on 12-9-2001 itself for entrusting the properties thus produced before the court to the Excise Inspector, Nadapuram, for safe custody. It can also be seen from this document that the learned Magistrate, on 12-9-2001 itself, issued an order for verifying the properties produced and for returning them for safe custody. When these facts are considered, it is quite evident that the properties thus produced by PW6 before the court on 12-9-2001 were returned to him for safe custody. The properties thus returned include the sample as well. Where those properties were kept after they were so returned from the court? Under whose custody, they were kept? None of the Excise Officials, including PW6, did not say anything about them. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It can be seen from this document that the sample of the contraband was handed over at the Chemical Examiner's Laboratory along with a letter dated 3-10-2001 CRL.A. 1761/2005 7 of the Judicial First Class Magistrate, Nadapuram. So, it can be presumed that before that date, the sample of the contraband so returned to PW6 again produced before the court. This Court in Narayani v. Excise Inspector (2002 (3) KLT 725) observed as follows: “........ 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, in that case, the appellant was found to be entitled to benefit of doubt. Since no evidence is forthcoming as to who was in possession of the contraband including sample till they were produced in court after they were returned to PW6, such a benefit of doubt can be extended to the appellant in this case as well. CRL.A. 1761/2005 8 7. The alleged detection of the offence in this case and the seizure of the contraband took place on 11-9-2001. The appellant, contraband including sample and the records were entrusted to PW6 by PW1 on that day itself. PW6, in turn, registered a case in respect of the occurrence and produced the appellant along with the Remand Report and the case records before the concerned Magistrate on the very same day. PW6 was a competent Abkari Officer for conducting investigation in the case. PW6 deposed before the court that he did not conduct any investigation of the case. He did not entrust anybody else for conducting the investigation. His explanation was that, after the date of detection of the offence in this case, he continued in that Excise Range Office only for 21 days and retired from service from that Range Office itself. Later, the investigation was conducted by PW5 and he has prepared the Final Report and submitted the same before the court. CRL.A. 1761/2005 9 The statements of witnesses recorded by PW5 and produced along with the Final Report would go to show that he had questioned the witnesses only on 15-5-2003, 21-5-2003 and 22-5-2003. What was the special reason for PW6 to refrain from conducting investigation of the case even though he continued in that Excise Range Office for 21 days more? What was the reason for the delayed investigation of the case by PW5. The prosecution did not offer any explanation for the delayed investigation conducted in this case. Section 50 of the Abkari Act deals with the investigation of the case and forwarding of report to 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 CRL.A. 1761/2005 10 Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” Section 50 thus mandates that the investigation into the offence shall be completed without delay. As soon as the investigation is completed, the Abkari Officer has to forward a report in accordance with sub-section 2 of Section 173 of Cr.P.C. In the case on hand, the occurrence was on 11-9-2001. Ext.P8 Certificate of Chemical Analysis dated 13-11-2002 has been received by the court on 18-11-2002. The Investigating Agency in this case should have submitted the Final Report before the court soon after the receipt of Ext.P8. But, after investigation by PW5, the Final Report reached the court only on 03-06-2003. Therefore, the inordinate delay in conducting the investigation and submitting the Final Report before the court in this case is CRL.A. 1761/2005 11 also 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).** 8. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 8(2)/8(1) of the Abkari Act. 9. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 8(2)/8(1) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S.To Judge CRL.A. 1761/2005 12