M. D. Jayaraj s/o Damodaran and Sukumaran s/o Ramankutty v. Excise Inspector, Sulthan Bathery Excise Range and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **CRL.A.No.760 OF 2008** **AGAINST THE JUDGMENT IN SC 62/2005 DATED 06-03-2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA** ## **APPELLANTS/ACCUSED:** **1 M.D.JAYARAJ S/O DAMODARAN, MALERI HOUSE, CHEERAL VILLAGE, NAMBIARKUNNU DESOM, NOOLPUZHA, SULTHAN BATHERY. 2 SUKUMARAN, S/O.RAMANKUTTY MALERI HOUSE, CHEERAL VILLAGE, NAMBIARKUNNU DESOM, NOOLPUZHA, SULTHAN BATHERY.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 EXCISE INSPECTOR SULTHAN BATHERY EXCISE RANGE.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1-2 BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** ## **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-11-** **2020, THE COURT ON 26-11-2020 DELIVERED THE FOLLOWING:** **C.R.** Crl.A.760/2008 2 ## **JUDGMENT** Convicts in S.C.No.62/2005 on the file of the Additional Sessions Judge (Ad hoc-II), Kalpetta, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging their conviction for offence punishable under Section 55(a) of the Abkari Act. The prosecution allegation is that, on 26.04.2003 at 4.30 a.m., while CW1 T.O. Johny, Excise Inspector attached to the Excise Circle Office, Sulthanbathery and party were on patrol duty and were inspecting vehicles at Muthanga-Ponkuzhy area, a jeep bearing Registration No.TN-43Z/1830 came from Mysore direction. When he gestured to stop the vehicle, it was not stopped. Then the Excise party chased the vehicle and at the Muthanga Forest Check Post, when the vehicle was stopped, a person travelled in the jeep on the front left side jumped out and ran towards the forest and disappeared. The driver and another passenger were intercepted; when the vehicle was inspected, four bags were found placed on the platform. When opened, it contained 45 Crl.A.760/2008 3 bottles of liquor by name New Janatha brandy 750 ml. capacity, in each bag; one bottle was opened and its content was tested by tasting and smelling, it was found Indian Made Foreign Liquor, which was being smuggled from Karnataka. The said bottle along with two other bottles were taken as samples and the remaining contraband items were seized under Ext.P1 mahazar and both the passengers of the jeep were arrested and the jeep was taken into custody. The four bags containing liquor were sealed and labelled and the matter was reported to the Excise Range Office. Thus Crime No.28/2003 of the Excise Range Office, Sulthabathery was registered. Both the accused were produced before court and were remanded to judicial custody. On completion of investigation, the charge sheet was laid before the Judicial First Class Magistrate, Sulthanbathery against the appellants and the owner of the jeep. The learned Magistrate, after completing the procedural formalities, committed the case to the Sessions Court, Kalpetta, from where the case came before the trial court. 2. The appellants were defended by counsel of their choice. After hearing counsel on both sides, when the charge for offence Crl.A.760/2008 4 punishable under Section 55(a) of the Abkari Act was framed, read over and explained, all of them pleaded not guilty. The owner of the jeep also faced trial as the third accused. Four witnesses were examined on the side of the prosecution as PWs 1 to 4. Exts.P1 to P8 were also marked. 177 bottles of liquor in four bags were identified and marked as MO1 series. On completion of prosecution evidence, when questioned under Section 313(1)(b) Cr.P.C., all the accused reiterated their innocence. As it was not a fit case for acquittal under Section 232 Cr.P.C., they were called upon to enter on their evidence in defence. But no evidence was adduced by them. After hearing counsel on both sides, by the impugned judgment, the third accused was found not guilty and acquitted under Section 235(1) Cr.P.C. Accused 1 and 2 were found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1 lakh each, in default to undergo rigorous imprisonment for six months. That finding is now called in question under Section 374(2) of the Cr.P.C. 3. I heard Sri.T.G. Rajendran, the learned counsel for the appellants and also Sri.K.B. Udayakumar, the learned Senior Public Crl.A.760/2008 5 Prosecutor for the respondent State. The trial court records were also perused. 4. The learned counsel for the appellants though had initially raised an argument that the detection was made by an incompetent officer, later that contention was not pressed. According to him, there is delay in producing the material objects before court. Though the incident had happened on 26.04.2003, the material objects were produced before court only on 28.04.2003 that there is no explanation for the safe custody of the items for the two days, when the same were kept in the Excise office. Secondly, it was pointed out, with reference to the oral testimony of witnesses, that though it was claimed that the material objects were sealed and labelled at the spot of detection itself, before court such seal or label could not be found, which is sufficient to doubt the credibility of the prosecution version. PW3, who had produced the items before court has no idea as to who had taken the items to the Excise office. According to the learned counsel, even PW4 the detecting officer has no knowledge as to whom the items were entrusted. He also referred to Section 53 of the Crl.A.760/2008 6 Abkari Act and relied on the decision reported in **Sasidharan v. State of** ## **Kerala [2007 (1) KLT 720]** . 5. On the other hand, the learned Senior Public Prosecutor pointed out that the delay highlighted by the learned counsel is not material as it was produced before court at the earliest. PWs 1, 2 and 4 have given uniform version about the detection of the crime, seizure of the material objects and the arrest of the appellants. The incident had happened at the early hours of 26.04.2003 so that the prosecution cannot be faulted for not citing any independent witness to attest the mahazar. According to the learned Public Prosecutor, the learned Sessions Judge has considered all matters in proper perspective and there is nothing to interfere with the conviction and sentence. 6. Section 53 of the Abkari Act is not applicable to the facts of the case since the crime was detected by a competent Excise Inspector. All the same, the moot question is whether the delay highlighted by the learned counsel can be reckoned as serious to doubt the credibility of the prosecution. When a crime is detected and contraband items are seized, it Crl.A.760/2008 7 is the duty of the prosecution to report the matter to the court and also to produce it before court without undue delay. In all cases it may not be practical to take the contraband to the court house forthwith; at the same time, having regard to the quantity, volume of the items etc., if it is not practical to transmit the same to the court at once, necessary permission shall be obtained to retain it in the safe custody of the investigating agency. Here, the seizure was done at the wee hours of 26.04.2003. But the items were produced before court only on 28.04.2003, on the third day. 7. Even though it is the statutory mandate that the detection of the crime and seizure of the item shall be reported, post-haste, to the court, every delay in taking the item to the court cannot be highlighted as fatal. If it could not be produced before court at the earliest, the prosecution has a duty to apprise the court that it was kept in safe custody, in tamper-free condition. Here, after going through the materials on record, this Court is not persuaded to hold that the material objects were kept in safe custody, beyond the reach of all and sundry. As rightly pointed out by the learned counsel, it was PW3 the Excise Range Inspector, Sulthanbathery, who had Crl.A.760/2008 8 received the offenders along with material objects and registered the Ext.P2 crime. He had produced the accused before court on 26.04.2003 itself with an application seeking judicial remand. At the same time, during cross-examination, he admitted that he had received the contraband at 10.45 a.m. on 26.04.2003 from the office staff; then he prepared the Ext.P3 property list and produced the items before court on 28.04.2003. According to him, the delay was due to pressure of work. The testimony of PW4 has to be read along with that of PW3. PW4 had detected the crime and taken the MOs to the Excise Range Office. He has merely stated that he had taken the MOs and the appellants to the Excise Range Office. From his statement it cannot be discerned with whom the MOs were entrusted. PW3 has stated that he had received the items at 10.45 a.m. from some staff members. He does not recollect as to who had handed over the items to him. In other words, there is lot of confusion with whom the material objects were entrusted by the detecting officer and who had handed it over to PW3 at 10.45 a.m. 8. In Ext.P1 mahazar, it is stated that three sample bottles and the Crl.A.760/2008 9 remaining contrabands contained in four bags were sealed and labels were affixed at the place of detection, that is the forest check post. It is a contemporaneous document. But, when examined before court, such seals or labels could not be found. The importance of the absence of seals and labels has been highlighted by the learned counsel for the appellants. There was no necessity for the committal court or the trial court to open the bags bearing seals or labels, before the trial since samples were collected from the spot of detection itself. Further, in Ext.P3 property list also it is not stated that the bags containing the remaining bottles were taken to the court, sealed and labelled, whereas all the three sample bottles were taken sealed. To put it in other words, an important link with regard to the upkeep of the items is missing. At the risk of repetition, it requires to be stated that PW4, the detecting officer has no case that he had entrusted the items with some one but has vaguely stated that it were taken to the Excise Office. Similarly, PW3, who had registered the crime and sent the items to the court, has stated that the items were received from some staff members, details of which are not available. This, along with Crl.A.760/2008 10 the absence of seal and label on the contraband, is suggestive of the fact that the items were not kept in proper safe custody or taken to the court secured. It is here that the delay in taking the items to the court assumes importance. PW4 himself had prepared the property list. Ext.P3 is seen prepared by the Excise Inspector, Sulthanbathery, on 26.04.2003. But the items had reached the court only on 28.04.2003. There is no evidence that either PW4 the detecting officer or PW3 the Excise Inspector had taken ample care for securing the items or for its upkeep and safe custody. There is utter confusion with regard to the upkeep of the items. The definite plea of the defence is that the bags containing the items were not sealed and labelled, which stands confirmed by the Ext.P3 property list. Such labels or seals were not found on the bags at the time of trial. 9. The statement of PW3 that the delay in taking the items to the court was due to work pressure also is not convincing or satisfactory. Firstly, Ext.P3 is seen prepared on 26.04.2003 itself. Secondly, both the arrestees, the appellants, were produced before court on the same day at 3.00 p.m. That means, in all probability, there was no difficulty for the Crl.A.760/2008 11 production of the items before court on 26.04.2003 itself. Oral and documentary evidence of the prosecution is suggestive of the fact that the material objects remained exposed, from the very outset. 10. It is the obligation of the prosecution that the selfsame items seized from the possession of the offenders are reached court without undue delay. Similarly, they have to apprise the court that the sample represents the items seized from the offender. Let the investigating agency take its own time to produce the item before court. Even though some delay is necessitated in bringing the items to the court, it is the obligation of the prosecuting agency to apprise the court that, in the interregnum, the items were kept in safe custody in a most tamper-free condition. Here, such a conclusion is not possible. The necessary inference is that there is substance in the contention of the appellants that the items allegedly seized from the possession of the appellants are not before the court. Such a major infirmity in the prosecution case will cut the very root of the case. In this backdrop, Ext.P6 chemical examination report cannot be given any importance. Crl.A.760/2008 12 11. Material objects in a criminal trial are sacrosanct. In the given allegation in the charge, the prosecution had to take utmost care to make out that contraband was secured from the place of detection itself and transmitted to the court in the very same condition, without giving room for any kind of manipulation. As revealed in this case, prosecution should not give an impression that matters were handled in a light-hearted and haphazard manner. 12. The learned Sessions Judge has overlooked such an infirmity crept in the prosecution case. The benefit of this lacuna should necessarily go to the appellants. They are entitled to get the benefit of doubt. In the result, the appeal is allowed. In reversal of the finding of conviction, both the appellants are found not guilty and acquitted under Section 386(b)(i) Cr.P.C. They shall be set at liberty. Bail bonds shall stand cancelled. Fine amount, if any, realised shall be refunded. Sd/- **K.HARIPAL JUDGE** //True copy// P.S. to Judge okb/23.11.2020