Kunjiram Guptan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** **CRL.A.No.728 OF 2007** **AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN SC 417/2003 DATED 24.03.2007 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III, PALAKKAD** **APPELLANT/ ACCUSED :** **KUNJIRAM GUPTHAN, AGED 57 YEARS, S/O.KUTTA GUPTHAN, POOLAKKAL VEEDU, KULAKATTUKURUSSI, KADAMPAZHIPURAM, OTTAPPALAM TALUK.** **BY ADV. SRI.R.SATISH KUMAR** **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR. PUBLIC PROSECUTOR SRI.B.JAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **CRL.A.No.728 OF 2007** 2 ## **JUDGMENT** Dated this the 26[th] day of February 2020 The appeal arises from the judgment of the Additional Sessions Judge (Fast Track Court No.-III), Palakkad in SC.No.417/2003, finding the appellant guilty for the offence under Section 55(a) of the Kerala Abkari Act, convicting and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-, with default sentence of rigorous imprisonment for a period of four months. The prosecution allegation, leading to the conviction of the appellant are as under :- On 19.08.2002, while the Sub Inspector of Police, Sree Krishnapuram Police Station, along with police party was conducting patrol duty, at about 16.40 hours they received reliable information that the accused had stored illicit arrack for sale in his house situated near ALP School, Kulakkattukurussi. The Sub Inspector prepared a search memorandum and forwarded the same to the jurisdictional Magistrate Court and thereafter proceeded to the house of the **CRL.A.No.728 OF 2007** 3 accused. While conducting search in the house at about 17.15 hours, in the presence of witnesses, 2 ½ litres of illicit arrack kept in a black can, concealed inside an aluminum vessel and placed under a bench in the kitchen was recovered. The accused was arrested and 500 ml of arrack from the can was drawn as sample and the sample bottle as well as the remaining contraband were sealed by following the prescribed procedure and Crime No.98/2002 of Sree Krishnapuram Police Station registered against the accused. 2. In order to prove the prosecution case, PWs 1 to 5 were examined and Exts.P1 to P10 marked in evidence. MO1, the black can containing the contraband arrack was identified and marked. The accused denied all the incriminating circumstances put to him during the Section 313 Cr.P.C. examination, but did not choose to produce evidence, either oral or documentary, on the defence side. The trial court, on appreciation of evidence and the contentions urged, came to the conclusion that the prosecution had succeeded in proving the guilt of the accused and therefore convicted the accused for the offence under Section 55(a) of the Abkari Act and sentenced him in the manner aforementioned. 3. Assailing the findings in the impugned judgment, **CRL.A.No.728 OF 2007** 4 the learned counsel for the appellant contended that the conviction under Section 55(a) of the Abkari Act was illegal, inasmuch as the provision under which the accused could have been charged was under Section 58 of the Abkari Act. In support of his contention, the learned counsel placed reliance on the decision of the Division Bench of this Court in **Surendran v. Excise Inspector [2004 (1) KLT 404]** . The other contention is based on the undisputed fact that, after detection, arrest and seizure by the Sub Inspector of Police (PW3), the investigation was entrusted with PW4, the Head Constable. It is contended that the Head Constable is not an Abkari Officer or a person authorised to conduct an investigation into an abkari offence as per Section 4 of the Abkari Act and therefore, by the investigation being entrusted with an incompetent officer, the final report, the cognizance taken and the trial itself is vitiated. Finally, it is contended that there is an unexplained delay of four days in producing the sample before the court, by which also the trial stood vitiated. 4. As far as the first contention based on the decision of this Court in Surendran's case (supra) is concerned, it is true that the Division Bench held that case in which arrack is recovered from a person's possession will fall within the **CRL.A.No.728 OF 2007** 5 ambit of Section 55(a) of the Act, only when the person is found to be in possession of liquor in the course of import, export, transport or transit of the contraband and that in case the possession is merely with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of Section 58 of the Act. But, having held so, the Division Bench did not acquit the accused in that case but only altered the sentence of imprisonment to fine of Rs.3,000/-. Therefore, the decision in Surendran's case (supra) cannot be taken as an authority to hold that merely for the reason that the accused was convicted for the offence under Section 55(a) of the Act, he would be entitled for an acquittal. 5. As far as the 2[nd] contention, regarding the conduct of investigation by PW4, the Head Constable attached to Sree Krishnapuram Police Station is concerned, the deposition of PW4 itself would clearly reveal that he had prepared the scene mahazar and had questioned the witnesses, including PW3, the Sub Inspector of Police. This Court had occasion to consider the impact of investigation conducted into an abkari offence by an incompetent officer in **Mari Dhorai and Another v. State of Kerala [2018 (4) KLT 1204]** . Therein, the Assistant Sub Inspector of Police had conducted **CRL.A.No.728 OF 2007** 6 the search, seizure, sampling, registration of the crime and investigation. Later, the investigation was verified by the Sub Inspector of Police, who filed the final report. Referring to SRO.No.321/96 and Section 31 of the Abkari Act, the learned single Judge held that police officers below the rank of Sub Inspector of Police were not entitled to conduct investigation. Based on the said finding, the appeal was allowed and the appellant acquitted. 6. As per Section 3(2) of the Act, “Abkari Officer” means the Commissioner of Excise or any other officer or other person lawfully appointed or invested with powers under Sections 4 or 5. As per Section 4 of the Act, the Government may appoint officers to control the administration of the Abkari Departments, to take action under Sections 40 to 53 and can authorise any officer to exercise and to perform all or any of the powers and duties assigned to any officer under clauses (d) and (e) of Section 4. 7. As per Section 31 of the Act, if, an Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under the Act has been committed, he may, after **CRL.A.No.728 OF 2007** 7 recording his reasons enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under the Act. 8. Section 50 of the Act stipulates that as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to the 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. 9. A conjoint reading of the aforementioned provisions make it clear that only an Abkari Officer or an Officer empowered under Sections 4 of the Act is entitled to conduct investigation and submit final report with respect to the offences under the Act. Therefore, the conduct of investigation by PW4 was without authority, which defect cannot be cured by verification of the investigation, and laying of final report by PW3, the Sub Inspector of Police. 10. The 3[rd] contention is with respect to the delay in producing the sample before the court. The contraband was seized and the sample drawn on 19.08.2002. In his cross examination, PW3 has admitted that the sample was produced in court only on 26.08.2002. There is a delay of seven days in **CRL.A.No.728 OF 2007** 8 producing the sample. Even though PW3 ventured to submit an explanation that the delay was occasioned due to the intervening Onam holidays, the explanation cannot be accepted in the absence of evidence regarding attempt having been made to produce the sample at the first opportunity. Coupled with the delay of seven days is the fact that the sample of the seal affixed on the sample bottle sent for chemical analysis was not affixed on Ext.P7 forwarding note. Absence of the sample seal would make it impossible for the trial court to compare the seal on the sample bottle with the sample seal on the forwarding note, so as to ensure that it was the sample that was collected from the contraband, that was sent for analysis. As has been repeatedly held by this Court, it is the duty of the Investigating Officer to explain that the contraband articles were produced before the court in a tamper proof condition. Otherwise, in the absence of satisfactory explanation by the prosecution showing the reason for delay, even the delay of one day would be fatal to the prosecution (see **Ravi v. State – S.I. of Police, Meppadi [2018 (5) KHC 352** ]. The fatal defect in producing the sample before the court immediately after seizure and the omission to affix the sample seal on the forwarding note has definitely vitiated the trial, the benefit of **CRL.A.No.728 OF 2007** 9 which should be given to the accused. In such circumstances, I find it impossible to sustain the impugned judgment. In the result, the impugned judgment is set aside, the appeal allowed and the appellant acquitted. The bail bond executed by the appellant till stand cancelled. Sd/- **V.G.ARUN, JUDGE** RKM