## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2013/8TH KARTHIKA, 1935
CRL.A.No. 1776 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 384/2000 of ADDL.SESSIONS COURT (ADHOC-II) KASARAGOD DATED 20-10-2003
## APPELLANT/ACCUSED :
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- M. BHASKARAN, S/O. NARAYANAN, EDATHOTTU HOUSE, KOTTOOR, MULIYAR.
BY ADV. SRI.M.RAMESH CHANDER
## RESPONDENTS/COMPLAINANTS :
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1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. STATION HOUSE OFFICER, ADHUR POLICE STATION , KASARAGOD.
BY PUBLIC PROSECUTOR SRI. N. SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/05/11
## V.K.MOHANAN, J.
---------------------------------------Crl.A.NO. 1776 OF 2003 ---------------------------------------Dated this the 30[th] day of October, 2013
## J U D G M E N T
The above appeal is directed against the judgment dated 20.10.2003 in S.C.No.384 of 2000 on the file of the court of Additional Sessions Judge (Adhoc) II, Kasaragod, at the instance of the accused, in the above sessions case, as he is convicted and sentenced for the offence under Section 55(a) of the Abkari Act.
2. The prosecution case is that on 10.11.1999 at about
8.20 p.m., the accused was found in possession of 53 packets, each having capacity of 100ml, of Karnataka made arrack at a place called Nekrampara in Moozhiyoor Village and thereby the accused committed the aforesaid offence.
3. On the basis of the above allegation, Crime No.159 of 1999 was registered in the Adhur Police Station. On completing the investigation, a report was filed before the
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Judicial First Class Magistrate’s Court, Kasaragod. The learned Magistrate by his order dated 23.12.1999 in C.P.No.397 of 1999 committed the case to the Sessions Court, where S.C.No.384 of 2000 was instituted and eventually transferred the case and posted the same before the present trial court for disposal. When the accused appeared before the trial court a formal charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the charge and pleaded not guilty. That resulted in further trial, during which the prosecution adduced its evidence by examining PWs 1 to 3 and by producing the documentary evidence Exhibits P1 to P7. MOs 1 to 4 were also identified as material objects.
4. The trial court finally found that the prosecution has
succeeded in establishing the possession of the contraband
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articles by the accused and accordingly he is found guilty of the offence under Section 55(a) of the Abkari Act and thus he is convicted thereunder. On such condition the accused is sentenced to undergo rigorous imprisonment for one year and he is also sentenced to pay a fine of `1,00,000/- and in default to pay the fine, he is directed to undergo rigorous imprisonment for a further period of three months. Set off is allowed. It is the above finding, the order of conviction and sentence challenged by the accused in the present appeal.
5. Heard Adv. Sri. M. Ramesh Chander, the learned counsel for the appellant and Adv. Sri. N. Suresh, the learned Public Prosecutor for the State.
6. Out of the three prosecution witnesses, PW1 is an independent witness cited and examined to prove the seizure mahazar. But he turned hostile. PW2 is the detecting officer who was then working as the Sub Inspector
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of Police in Adhur Police Station and PW3 was a police constable who assisted PW2 during the detection of the crime. When PWs2 and 3 were examined they have deposed in terms of the prosecution allegation. According to these witnesses when they were on night patrol duty and while were moving along the Nekrampara - Moozhiyoor road at about 08.20 p.m., they found the accused coming in their opposite direction holding a polythene bag and on interception and by inspection of the polythene bag, they found that the same contained 53 plastic packets of arrack each having 100ml. Accordingly the accused was arrested as per Exhibit P2 arrest memo. By preparing a mahazar, the entire material objects were seized and also drawn sample in two bottles each having capacity of 375 ml. Towards drawing the sample, six packets, out of 53 packets, were opened and collected the same in the sample bottles. The
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details of the procedure adopted by PW2 for the seizure of the contraband article and for drawing of the samples, are mentioned in Exhibit P3 seizure mahazar. According to PWs 2 and 3, on completing the proceedings towards seizure of the contraband articles and the arrest of the accused, they returned to the police station wherein Exhibit P4 First Information Report was registered. According to these witnesses, on the same day, PW2 prepared Exhibit P5 property list and also prepared Exhibit P6 forwarding note and produced the material objects as well as the samples before the court for chemical analysis report. Thus obtained Exhibit P7 chemical analysis report. When PW2 was examined Exhibit P1 scene mahazar, Exhibit P2 arrest memo, Exhibit P3 seizure mahazar, Exhibit P4 First Information Report, Exhibit P5 property list, Exhibit P6 forwarding note and Exhibit P7 chemical analysis report
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were marked through him. PW3 during his examination identified MOs 1 to 4 and he had also deposed in tune with the deposition of PW2. It is on the basis of the above evidence and the materials on record, the trial court found in favour of the prosecution and convicted the accused.
7. The learned counsel for the appellant vehemently submitted that there is substantial delay in producing the material objects and the samples before the court below and the trial court without taking note of the above defect opted to believe the case of the prosecution and convicted the appellant/accused. Thus according to the learned counsel the findings entered into by the court below is factually and legally unsustainable and liable to be interfered with.
8. Per contra, the learned Public Prosecutor submitted that the oral evidence of PWs 2 and 3, supported by the contemporaneous documents clearly establish the guilt of
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the accused and therefore the trial court is fully correct in its findings and as such no interference is warranted.
9. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the evidence and material on records.
10. In the light of the rival contentions advanced and in view of the evidence and material on records, the question to be considered is whether the trial court is correct and justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act. The prosecution allegation is that while PWs 2 and 3 were on patrol duty they found the accused in possession of 53 packets of Karnataka made arrack and the same were seized from his possession and he was arrested then and there. A Division Bench of this Court in the decision Ravi v.
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State of Kerala reported in [2011(3) KLT 353] is held that the production of the property before court without unreasonable delay is also a necessary requirement of law. It is also held in the above decision that there should be explanation for the delay when there is delayed production of the property. In the present case it is relevant to note that the properties and the samples were produced before the court only on 26.11.1999, though the properties were claimed to have seized from the possession of the appellant on 10.11.1999. No convincing explanation is forthcoming either from PW2 or from PW3 for the delayed production of material objects including the samples. The attempt made by PW2 to get over the above adverse situation by saying that there were no sufficient policemen in his station, is resulted in vein, by virtue of the evidence of PW3 a police constable attached to the very same Police Station, who said
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that there were sufficient strength of policemen in that station.
11. The learned Judge, in paragraph 9 of the impugned judgment, ignoring the above defect in the evidence of the prosecution, has erroneously found that PW2 has given explanation for the delay occurred in producing the sample and the thondy articles. According to the learned Judge, the delay of two weeks is not so serious, since the court verified the thondy articles and returned to the SHO for safe custody. But no explanation is forthcoming from PW2 about the safety measures adopted by him to keep the sample in tact and the preventive measures taken to prevent tampering the samples till, the same are produced before the court. PW2 has not stated anything as to where the samples were kept and who was the custodian of the same except his bare claim that he kept the same with him.
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12. In this juncture, it is relevant to note that though the accused was said to have arrested from the place of occurrence at about 8.20 p.m. on 10.11.1999, when he was allegedly found in possession of the contraband article and when the arrest memo Exhibit P2 which claimed to have prepared then and there, the present crime number is incorporated in Exhibit P2. The explanation offered by PW2 is that he had contacted the Station over wireless set and thus obtained the crime number and endorsed the same as Exhibit P2 arrest memo. The above explanation of PW2 cannot be believed and such an explanation is offered to get rid of the adverse situation connected with the incorporation of the present crime number in Exhibit P2, which said to have prepared at the scene of crime. According to me, the sanctity of the alleged seizure and arrest of the accused thus gone and it cannot be believed about the seizure or arrest as
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claimed by the prosecution.
14. In the light of the above facts and circumstances and in view of the aforesaid defect in the prosecution case and particularly due to the non-explanation of the huge delay in producing the material objects as well as the samples before the court and the absence of the evidence about the safety as well as preventive measures adopted to keep the samples in tact, according to me, it cannot be said that the prosecution has succeeded in establishing its case against the accused beyond reasonable doubt. The trial court miserably failed to extend the benefit of doubts in favour of the appellant/accused. Therefore, I am unable to approve the conviction recorded by the trial court against the accused and extending the benefit of doubt, the conviction recorded by the trial court is set aside.
In the result, this appeal is allowed setting aside the
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judgment dated 20.10.2003 in S.C.No.384 of 2000 on the file of the Court of Additional Sessions Judge (Adhoc) II, Kasaragod and the appellant/accused is acquitted of all the charges levelled against him. The bail bond if any executed by the appellant would stand cancelled. The court below is directed to release the amount, if any deposited by the appellant at the time of execution of bail bond, to him forthwith on an application moved on this behalf. The criminal appeal is allowed as above.
Sd/V.K.MOHANAN, JUDGE.
// True Copy // P.A. To Judge
DSV/-
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