Manjesh @ Ebin v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 CRL.A NO. 2300 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 243/2006 OF ADDITIONAL SESSIONS JUDGE/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA APPELLANTS/ACCUSED Nos.1 & 2: ``` ``` 1MANJESH @ EBIN PURAMCHIRAYIL HOUSE, KATTAPPANA VILLAGE,, KOCHUTHOVALA KARA. 2SAJI S/O. SIVARAMAN CHERUVIL HOUSE, KATTAPPANA VILLAGE,, KOCHUTHOVALA KARA. BY ADVS. C.M.TOMY MATHEW SKARIA BALU TOM SMT.REMYA MURALI, AMICUS CURIAE ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV.SANAL P.RAJ, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ``` ``` ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA No.2300/2007** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal No.2300 of 2007 ---------------------------------------------Dated this the 29[th] day of August, 2022** ## **JUDGMENT** Appellants are the accused in S.C.No.243/2006 on the file of the Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha. The case was charge-sheeted alleging offences punishable under Sections 55(a) and 8(1) & (2) of the Abkari Act. 2. The prosecution case is that on 09.09.2003, at about 9 am, the Sub Inspector of Police, Kattappana received secret information that accused Nos.1 and 2 are selling illicit arrack near the house of the 2[nd] accused. Police party reached the place and accused Nos.1 and 2 were seen sitting on a rock possessing a black cannas nearby. On seeing the police party, the 2[nd] accused ran away from the place and the 1[st] accused was questioned. The contraband were seized. On examination by tasting and smelling, it is found that it is illicit arrack. Hence it is alleged that the appellants committed the offence. **CRA No.2300/2007** **3** 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P10 are the exhibits marked on the side of the prosecution. MO1 to MO3 are the material objects. Exts.D1 and D2 are the exhibits marked on the side of the defence. The specimen signature of PW1 and PW2 are marked as Exts.C1 and C2. After going through the evidence and the documents, the trial court found that accused Nos.1 and 2 committed the offence. The 3[rd] accused was acquitted. Accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/each. In default of payment of fine, they were sentenced to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by accused Nos.1 and 2. 4. When this appeal came up for consideration, there was no representation for the appellants. Therefore, Smt.Remya Murali was appointed as Amicus Curiae. Heard the Amicus Curiae and the learned Public Prosecutor. 5. The Amicus Curiae raised five contentions. The Amicus Curiae submitted that there is a two days’ delay in **CRA No.2300/2007** **4** producing the contraband article before the court and that is fatal to the prosecution because there is no explanation for the same. The Amicus Curiae also submitted that, PW3 is only an Assistant Sub Inspector and he conducted part of the investigation and he is not an authorised person as per the Abkari Act and therefore, the entire trial is vitiated for that simple reason. It is also submitted that the alleged search and seizure were on 09.09.2003 and the final report was filed only on 29.01.2005. The Amicus Curiae further submitted that there is no explanation for that also. The Amicus Curiae submitted that the independent witness not only turned hostile to the prosecution but they even disputed the signature in the seizure mahazar. The Amicus Curiae submitted that in such circumstances, the evidence of official witness may not be relied on. 6. The Public Prosecutor, on the other hand, submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the appellants. The Public Prosecutor submitted that there is no prejudice caused to the accused **CRA No.2300/2007** **5** because an Assistant Sub Inspector investigated the case. The Public Prosecutor also submitted that the delay in producing the article is only two days and non-explanation of the same is not fatal. 7. The point to be decided in this case is whether the appellants committed the offence as alleged by the prosecution. 8. Admittedly there is a delay of two days in producing the contraband articles before the court. There is no explanation for the same. The delay in producing the article is fatal to the prosecution. 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 **CRA No.2300/2007** **6** 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.” 9. Moreover, an Assistant Sub Inspector conducted part of the investigation. Assistant Sub Inspector is not an authorised officer as per the Abkari Act. This point is considered by this Court in **Mari Dhorai and Another v. State of Kerala [2018 KHC 814]** and **Parathi Sasidharan v. State of Kerala [2012 KHC 340].** 10. Similarly, the alleged search and seizure was on 09.09.2003 and the final report was filed only on 29.01.2005. There is no explanation for the delay in completing the investigation. It is the duty of the officials to complete the **CRA No.2300/2007** **7** investigation immediately. If there is delay in conducting investigation, that is fatal to the prosecution. In **Kumaran v. State of Kerala and others [2016 (4) KLT 718]** and **Cheruvayi Mukundan and others v. State of Kerala [2016** **(3) KLT 532]** , this Court considered this point. It will be beneficial to extract the relevant portion of the judgment in **Kumaran's case** (supra). “6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala, 2015 (1) KHC 822 : 2015 (1) KLD 421 : 2015 (1) KLJ 793 : 2015 (2) KLT SN 11 to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24/07/2007, the investigation was conducted and the final report was filed before the Court only on 13/01/2009. PW 2 was the Investigating Officer. PW 2 started the investigation of this case only on 15/02/2008. No explanation had been given by the prosecution as to why there was long delay in **CRA No.2300/2007** **8** conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres”. 11. In the light of the above discussion, I think the appellants are entitled the benefit of doubt. Therefore, the Criminal appeal is allowed in the following manner: - i. The conviction and sentence imposed on the appellant as per judgment dated 31.10.2007 in S.C.No.243/2006 on the file of the Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha, are set aside and the appellants are set at liberty. - ii. The bail bonds, if any, executed by the appellants are cancelled. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV