Leelavathi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **CRL.A.No.949 OF 2006** **AGAINST THE JUDGMENT IN SC 105/2003 DATED 10-05-2006 OF ADDITIONAL SESSIONS JUDGE, (ADHOC-III), KASARAGODE** ## **APPELLANT/ACCUSED:** **LEELAVATHI, AGED 45 YEARS W/O. SADASHIVA SHETTY, OLAMALA, BADIADKA VILLAGE, KASARAGOD.** **BY ADV. SRI.T.B.SHAJIMON** ## **RESPONDENT/S:** **STATE OF KERALA REP. BY STATION HOUSE OFFICER, BADIADKA POLICE STATION., WHO IS REPRESENTED BEFORE THIS HONOURABLE COURT BY, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.949 OF 2006** 2 ## **JUDGMENT** ## **Dated this the 14th day of December 2020** Appellant is the accused in S.C.No. 105/2003, on the file of the Additional Sessions Judge (Adhoc)-III, Kasaragod. The above case is charge sheeted by the Sub Inspector of Police, Badiadka Police Station, against the appellant alleging the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 04-03-2001, at about 6.15pm, the accused was found in possession of 138 packets of Karnadaka made arrack, each containing 100ml. Hence it is alleged that the accused committed the offence punishable under Section 55(a) of the Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P7 are also marked on the side of the prosecution. No material object is produced in this case. 4. After going through the evidence and documents, the trial Court found that the accused **CRL.A.No.949 OF 2006** 3 committed the offence punishable under Section 55(a) of the Abkari Act. The accused is sentenced to undergo simple imprisonment for four years and to pay a fine of Rs.1,00,000/-. In default of payment of fine , the accused is directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard. 6. Admittedly, the alleged seizure in this case was on 04-03-2001. The properties are produced before the Court only on 07-03-2001. There is no proper explanation from the side of the prosecution for the delay in producing the property from 04-03-2001 to 07-032001. It is the duty of the prosecution to produce the property before the Court immediately after the seizure. If there is no explanation for the same, that is fatal to the prosecution. 7. The seizure of the contraband in this case was on 04.03.2001. The sample reached the court only on 07.03.2001. There is no explanation on the part of the **CRL.A.No.949 OF 2006** 4 prosecution regarding the delay in producing the sample before the court. This point is considered by this Court in _**Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822).**_ Relevant portion of the judgment in **Ravi** 's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 8. Moreover, the material object is not produced and marked in this case. A perusal of Ext.P4, property list will show that the property was produced on 07-03-2001 **CRL.A.No.949 OF 2006** 5 and it was returned for safe custody. Now the officer concerned reported before the Court that the property is lost. The trial Judge stated that, it is natural to lost properties from the property room nowadays. Relevant portion of the discussion of the learned Judge is extracted hear under: “11. The next contention raised by the learned defence counsel is that MOs seized by PW1 has not seen produced before the court for the identification of the property. So, according to the defence counsel, it is very fatal to the prosecution case. In this case, the present Sub Inspector of Police has filed a report stating that the properties in this case is already damaged from the property room and it not able to produce before this court for identification. It is reported further that all the properties are kept in the property room of the police station and this properties happened to be in the properties involved in other cases and this properties are damaged without able to identification. It is quite natural to damage the property in the property room of the police station and now a days. It is practicable to prepare the inventory of the properties seized and all the properties need not be produced before the court. The properties in this case already produced before the Judicial First Class Magistrate Court on 7-03-2001 and the Judicial First Class Magistrate Court has given these properties for safe custody to the Sub Inspector of police. The valuable property in this case is the sample taken from the scene of occurrence and it is already forwarded to the Analyst and this court has obtained Ext.P6 Analyst Report from the Analyst. In the Ext.P2 Seizure mahazar also description of the properties are mentioned and in the circumstances prosecution cannot be blamed for not producing the properties before the court. Moreover, there is prejudice to the accused for the non production of produce the properties before the court and the **CRL.A.No.949 OF 2006** 6 inconvenience and prejudice were not submitted by the defence. In the circumstances, even if, the properties are not produced before the court, I am of the view that there is no prejudice to the accused and in the circumstances, the contention of the learned defence counsel cannot be accepted”. 9. I cannot agree with the learned Judge. If the material object is not produced before the Court it will prejudice the interest of the accused because he has to cross-examined the witnesses based on the material objects. Simply because there is seizure mahazer and the property list, it cannot be said that the production of material object is not fatal. According to me, on this ground also, the accused is entitled to the benefit of doubt. 10. Moreover, in the arrest memo, which is produced and marked as Ext.P1, the crime number is mentioned. Usually the arrest memo will be prepared at the time of the arrest. Thereafter, only the case will be registered and a crime number will come. In this case in the arrest memo itself the crime number is mentioned. That shows that, there is some manipulation in the arrest memo itself. **CRL.A.No.949 OF 2006** 7 Moreover, the column regarding the information to relatives of arrestee is also kept blank. This point is considered by this Court in _**Rafeeque v. Sub Inspector of Police & Anr. (2020 (3) KHC 715)**_ the relevant paragraph is extracted here under: “21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134 and Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48). When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shyam Bharia v. State of Madhya Pradesh: 2005 Cri.L.J 1907). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See K. Kalyani v. State : MANU/TN/1070/2019). 22. In the instant case, Ext.P3 arrest memo allegedly prepared by PW1 at the spot of the occurrence, before the registration of the first information report, bears the crime number of the case. PW1 has not given any evidence that he **CRL.A.No.949 OF 2006** 8 inserted the crime number of the case in the arrest memo after the registration of the first information report. PW7 has also no such case before the court. As PW1 was the police officer who had arrested the first accused and who had registered the first information report, he is supposed to explain the presence of the crime number in the arrest memo. No explanation is offered by the prosecution with regard to the presence of the crime number of the case in Ext.P3 arrest memo. This creates doubt about the manner in which the seizure and arrest were effected. This also supports the evidence given by the independent witnesses that they put the signature in Ext.P3 arrest memo at the police station”. 11. In the light of the above discussions, I think the appellant is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the accused as per the judgment dated 10-05-2006 in S.C. No.105/2003, on the file of the Additional Sessions Judge (Adhoc)-III, Kasaragod is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **sa**