Kunjumon v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937 CRL.A.No. 703 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 220/2004 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA DATED 06-03-2006 ## APPELLANT/ACCUSED: ---------------------------------------- KUNJUMON, S/O. JOSEPH, KOCHUPARAMBIL, KOMBAYAR KARA, PARATHODU VILLAGE. BY ADV. SRI.S.K.MURALEEDHARA KAIMAL RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, NEDUMKANDAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = Crl.A. No. 703 of 2006** **= = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of February, 2016** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thodupuzha, for the offences under Sections 55(a) and 8(2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 8(2) of the Abkari Act. No separate sentence was passed for the offence under Section 55(a) of the Abkari Act. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the CRA 703/2006 2 appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Nedumkandam Police Station, and his party were on patrol at about 5.30 p.m. on 21.4.2002. When they reached Mavadivilakku, they received information that arrack was kept in the house of the appellant at Swarnakuzhy. After sending the search memo to the court, the police party reached that house and searched the same. The appellant was present there. During the search, a 10 litre black jerrycan containing some liquid was found beneath a cot in the northern bed room of that house. On examining the jerrycan, about 3.5 litres of arrack was found in it. Since the appellant has committed an offence under the Abkari Act, he was arrested by PW5 then and there. PW5 has drawn two samples of 300 ml. each of arrack in two 375 ml. bottles from the bulk CRA 703/2006 3 contained in the jerrycan. The sample bottles were sealed and marked as S1 and S2. The jerrycan containing rest of the arrack was also sealed. The samples as well as the jerrycan containing arrack were seized by PW5 under Ext.P1 Search List in the presence of witnesses. Thereafter, PW5 and his party reached Nedumkandam Police Station with the appellant, properties and the records and registered Crime No.105 of 2002 of that Police Station in respect of the occurrence Ext.P4 is the F.I.R. thus drawn by PW5. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Nedumkandam. PW5 conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court CRA 703/2006 4 of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thodupuzha. The court below framed a charge against the appellant alleging the offences under Sections 55(a) and 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P9 and MOs.1 and 2 on their side. Exts.D1 and D2 were marked on the side of defence through PW5. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has examined DW1 and marked Ext.D3. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(a) and 8(2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. CRA 703/2006 5 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found in possession of 3.5 litres of arrack at about 5.30 p.m. on 21.4.2002. He was arrested then and there by PW5 and the contraband was seized under Ext.P1 Search List. Two samples, marked as S1 and S2, were also drawn from the bulk of arrack contained in the jerrycan. Thereafter, PW5 and his party reached Nedumkandam Police Station with the appellant, contraband including samples and the records. Ext.P1 Search List was produced before the court on 22.4.2002. Ext.P4 F.I.R. was produced on 22.4.2002. Ext.P3 Arrest Memo was produced on 22.4.2002. But, the jerrycan containing bulk of arrack and the two samples of arrack were produced before the court only on 23.5.2002, ie after a period of one month of their alleged seizure on 21.4.2002. Similarly, Ext.P6 Report with which the CRA 703/2006 6 Forwarding Note for subjecting the sample to chemical analysis was also produced only on 22.5.2002. What was the reason for occurring such a long delay in producing the properties and the Forwarding Note? PW5, the Detecting Officer as well as the Investigating Officer, attempted to explain away the delay that occurred in producing the properties before the court by saying, during his cross examination, that when the properties were first produced before the court, they were returned from the court for the reason that inspection was going on in the court. Later, delay occurred in producing the properties before the court, he further stated. Can this be accepted as a genuine and valid explanation for the delay that occurred in producing the properties in this case? PW5 himself admitted that the distance between the court and the Police Station is only 250 metres. Moreover, as already noted, he has produced some of the records before the court on 22.4.2002. On CRA 703/2006 7 that day, there was no difficulty for him to produce the records before the court. Ext.P5 List of Property does not show that the properties were produced on a day earlier than 23.5.2002. If the properties, as a matter of fact, produced earlier before the court, indicating that fact an endorsement would have been made from the court. But, no such endorsement has been made from the court in Ext.P5 List of Property. Another aspect also has to be noted here. When the properties were produced before the court on 23.5.2002, the office of the court made a submission before the learned Magistrate to the effect that the jerrycan and one sample bottle may be returned for safe custody. On 23.5.2002 itself, the learned Magistrate allowed that submission. If the properties were produced soon after 21.4.2002 before the court and if they were returned as claimed by PW5, such an endorsement would have been made in the List of Property. Moreover, there is no evidence CRA 703/2006 8 at all to show that inspection was going on in the court during that period. In view of these facts, this Court has no other way than to reject the explanation so offered by PW5. It was quite easy for him to produce the properties soon after their alleged seizure as the court is very near to the police station. 6. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW5 is not proper and satisfactory. The explanation of PW5 that the properties were under his safe custody till they were produced before the court will not come to the rescue of the prosecution. Moreover, PW5 himself admitted that there CRA 703/2006 9 occurred delay in producing the properties before the court. The production of contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. The lame excuses as offered by PW5 while he was in the witness box will not save the prosecution from the delay occurred in producing the properties. The delay occurred in this case, in the facts and circumstances, is fatal to the prosecution case. 7. It is reported in Ext.P7 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also certified in this document that the seals on the packet were intact and found tallied with the sample seal provided. Which sample seal is meant here? A copy of the letter forwarded by the learned Magistrate to the Joint Chemical Examiner is available among the records. It is specifically noted in this letter that the sample seal used to affix on the packet is also enclosed with the letter. Ext.P7 says that the CRA 703/2006 10 seals on the packet were intact and found tallied with the sample seal provided. Therefore, it follows that the comparison of the seals appeared on the packet was made by the Chemical Examiner with the sample seal provided from the court. The seals of the Detecting Officer were not affixed on the packet. Ext.P7 does not say that the comparison of the seal appeared on the sample bottle was made with the sample seal provided in the Forwarding Note. Therefore, there is no assurance that the Chemical Examiner, in fact, examined really the sample of the arrack allegedly seized from the appellant. Moreover, the Forwarding Note describing the sample reached the court only on 22.5.2002. The facts already stated with regard to the delay in producing the properties before the court will be applicable to the delayed production of the sample as well as the Forwarding Note describing the sample. For this reason also, Ext.P7 Certificate of Chemical Analysis is CRA 703/2006 11 rendered a doubtful one entitling the appellant to the benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offences under Sections 55(a) and 8(2) 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. (Hr.Gr.)To Judge CRA 703/2006 12