Kunhan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936 CRL.A.No. 2082 of 2005 --------------------------- AGAINST THE JUDGMENT IN SC 376/2004 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-I), KOZHIKODE APPELLANT/ACCUSED: ---------------------------------------- KUNHAN, S/O.ONNUTHOTTIL KUNKAN, ADOOPA KURICHYA COLONY, VELLI AMSOM & DESOM VADAKARA TALUK. BY ADVS.SRI.SAJU.S.A SRI.P.S.MURALI RESPONDENT/STATE: ---------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 2082 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of May, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kozhikode, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo simple imprisonment for six months. The appellant challenges the conviction and sentence so passed by the court below, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 2082/2005 2 3. The prosecution case is briefly stated as follows: PW1, the Preventive Officer, Excise Range Office, Nadapuram, and his party were on patrol at Koolikavu in Narippatta, at 5.30 p.m. on 14-07-2000. While so, the appellant was seen coming with a 2.5 litre jerrycan. He was stopped by the excise party and examined the jerrycan when it was found that it contained about two litres of illicit arrack. Therefore, the appellant was arrested by PW1 then and there. Ext.P1 is the arrest memo. He had taken 300 ml. of illicit arrack from the jerrycan in a 375 ml. bottle as sample. The sample and the jerrycan containing the residue were sealed and labelled and they were seized by PW1 under Ext.P2 Mahazar in the presence of witnesses. Thereafter, PW1 reached the Excise Range Office, Nadapuram, along with the appellant, contraband and the records. CRA 2082/2005 3 4. PW1 had prepared Ext.P3 Crime and occurrence report. Also prepared Ext.P4 List of Property and Ext.P5 Forwarding Note. PW4, the Excise Inspector, Excise Range Office, Nadapuram, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. He had completed the investigation and prepared the Final Report and it was submitted before the Judicial First Class Magistrate's Court, Nadapuram, on 13.5.2003. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Vadakara. Later, it was recalled by the Court of Session and made over to the Additional Sessions Court,(Adhoc)-I, Kozhikode. 5. 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 4 and marked Exts. P1 CRA 2082/2005 4 to P6 and MO.1 on their side. The appellant had denied all the incriminating circumstances shown against him during his examination under Section 313(1)(b) of Cr.P.C. The defence examined the appellant as DW1 and marked Exts.D1 and D2 on its side. The court below, after considering the matter, relying on the evidence adduced by the prosecution, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence. 6. The appellant has raised several contentions challenging the conviction and sentence passed against him. The case of the prosecution is that the appellant was seen carrying a 2.5 litre jerrycan containing about 2 litres of illicit arrack, at 5.30 p.m. on 14.7.2000. The contraband along with the sample was seized by PW1 then and there. The very basis of the prosecution launched against the appellant CRA 2082/2005 5 is the seizure of the contraband under Ext.P2 seizure mahazar. The seizure mahazar was prepared contemporaneously. Therefore, in a prosecution for an offence like this, the seizure mahazar assumes significance. It is the statutory mandate that the seizure of the property should be reported forthwith to the court. That means, without any time lag, the seizure mahazar should reach the concerned court. Ext.P2 is the seizure mahazar. It can be seen from Ext.P2 that it reached the court only on 13.5.2003, presumably, along with the Final Report submitted in the case. No explanation was offered for the delay thus occurred in reaching Ext.P2 in the court. Therefore, in the circumstances of this case, the inordinate delay occurred in sending Ext.P2 seizure mahazar to the court is fatal to the prosecution. 7. The investigation of the case had been conducted by PW4. He had worked as the Excise Inspector, Nadapuram, CRA 2082/2005 6 from 1.1.2003 to 5.5.2003. The investigation of this case, where the alleged detection of the offence was on 14.7.2000, was conducted by PW4 only after he assumed his office as Excise Inspector, Nadapuram, on 1.1.2003. The delay thus occurred in commencing, conducting and completing the investigation was not explained by him or by any other official witness before the court. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the concerned Magistrate. This mandate of the statute was not complied with by the prosecuting agency in this case. What was the reason? No explanation was forthcoming from PW1 or PW4. CRA 2082/2005 7 8. In the case on hand, the occurrence was on 14.7.2000. Ext.P6 Certificate of Chemical Analysis dated 29.5.2001 had been received by the court on 15.11.2001. The investigating agency in this case should have submitted the Final Report before the court immediately after the receipt of Ext.P6. But, it took more than a year to commence the investigation by PW4 after the receipt of Ext.P6 by the court. After investigation by PW4, the Final Report reached the court only on 13.5.2003. The inordinate delay thus occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala(2013(3)KHC 780).** 9. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be CRA 2082/2005 8 set aside. The appellant is entitled to an order of acquittal of the offence alleged against him. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 55(a) 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 CRA 2082/2005 9