Michael @ Kunju Kunju v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 3789 OF 2010`_ ``` AGAINST THE JUDGMENT DATED 24.07.2009 IN SC 614/2007 OF ASSISTANT SESSIONS JUDGE, OTTAPPALAM WHICH IS PARTLY ALLOWED BY THE JUDGMENT DATED 30.09.2010 IN CRL.A. 505/2009 OF ADDITIONAL DISTRICT JUDGE (ADHOC) III, PALAKKAD ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` MICHAEL @ KUNJU KUNJU, AGED 56 YEARS S/O. MICHAEL, PATTIMAVIL VEEDU, POMPRA DESOM,, (DUBAIKUNNU), KARIMPUZHA II VILLAGE,, OTTAPPALAM TALUK, PALAKKAD. BY ADV SRI.NIREESH MATHEW ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_ ``` STATE OF KERALA EXCISE INSPECTOR, CHERPULASSERY EXCISE RANGE,, PALAKKAD DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH, COURT OF KERALA, ERNAKULAM. ``` ## _`OTHER PRESENT:`_ ``` SMT.NIMA JACOB-P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P No. 3789 of 2010 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** ## Crl.R.P. No. 3789 of 2010 ## **========================** ## _**O R D E R**_ **Dated this the 07[th] day of December, 2023** This revision is at the instance of the accused in S.C. No.614 of 2007 on the file of Assistant Sessions Judge, Ottappalam, assailing the judgment in Crl.Appeal No.505 of 2009 on the file of Additional Sessions, (Adhoc-III), Palakkad, which upheld his conviction under Sections 8(1) and 8(2) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that on 17.05.2004 at about 5.30 p.m., the revision petitioner was found carrying 4 ½ litres of arrack through the bund of Kanjirapuzha Sub Canal. PW2, the Excise Guard and party while doing patrol duty, detected the ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** offence. PW4, the Excise Inspector registered the crime on production of the contraband along with the revision petitioner before the Excise Office. PW4 investigated the case and laid charge sheet against the revision petitioner under Sections 55(a), 8(1) and 8(2) of the kerala Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty, and claimed to be tried. Thereupon, prosecution examined PWs.1 to 4, marked Exts.P1 to P8, and identified MO1, to prove its case. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C., he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** Abkari Act, and he was sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of six months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.505 of 2009. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction of the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act, and so, upheld his conviction, but modified and reduced the substantive sentence to rigorous imprisonment for one year maintaining the fine part and its default sentence, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** 9. Learned counsel for the revision petitioner pointed out that, some material defects were there in the prosecution case, which, according to him, are sufficient to vitiate the trial. First of all, he pointed out that, CW5, the Excise Inspector who registered the crime was not examined in this case and no explanation is offered by the prosecution for his non-examination. The offence was detected on 17.05.2004 at 5.30 p.m. According to PW1, immediately after the seizure and arrest, the contraband along with the revision petitioner were produced before Cherpulassery Excise Range office. But, Ext.P3 occurrence report was registered only on 18.05.2004 as seen from that document. So, there occurred delay of one day in registering the crime. Prosecution was bound to explain that delay in registering the crime. CW5, the Excise Inspector, who registered the crime, ought to have been examined by the prosecution as he was the most competent witness to explain that delay. Since that has not been done, the delay in registering the ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** crime stands unexplained. 10. Ext.P4 property list also was seen prepared on 18.05.2004. Since the detection was on 17.05.2004 at 5.30 p.m., there occurred one day's delay in preparing the property list and in producing the articles seized before the jurisdictional court. That delay also is not explained by the prosecution. 11. Ext.P2 is the seizure mahazar prepared by PW1 at the time of seizure. But the specimen impression of the seal used for sealing the sample bottle will not find a place in Ext.P2 seizure mahazar. 12. In **Bhaskaran v. State of Kerala** [2020 KHC 5296], this Court held that, _the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the_ ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** _nature of the seal used shall be mentioned in the seizure mahazar also._ 13. Ext.P7 forwarding note also is dated on 18.05.2004. Though specimen impression of the seal is affixed in the forwarding note, the name of the excise guard with whom the sample was sent to the chemical examiner’s lab, is not mentioned there. Ext.P8 chemical analysis report shows that, the seals on the packet and the bottle were intact, and found tallied with the sample seal provided. Since the seizure mahazar prepared at the scene of occurrence does not contain specimen impression of the seal, we are not sure whether the sample bottle was sealed at the time of seizure itself, or at a subsequent point of time. So, the statement in Ext.P8 that the seals on the bottle were intact and found tallied with the sample seal provided, is of no consequence. 14. Though the occurrence was on 17.05.2004, the final report was seen filed before court only on 05.02.2007, after a ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** delay of about three years. Prosecution failed to explain the delay in conducting investigation and in filing the final report, as envisaged under Section 50 of the Abkari Act. Every investigation into the offence under the Abkari Act shall be completed without unnecessary delay, as mandated under Section 50 of the Abkari Act. When there is delay, prosecution is bound to explain it satisfactorily. Or less, the benefit of that doubt should go to the revision petitioner [See _**Chandran vs. State of Kerala**_ [2016 (5) KHC 650], _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], _**Moothedath Sivadasan v. State of Kerala**_ [2021(1)KLT 744)]. 15. The trial court as well as the appellate court convicted the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act, without noticing the material defects mentioned above, which are fatal to the prosecution case. So, the conviction and sentence imposed on the revision petitioner by the courts below are liable to be set aside. ``` Crl.R.P No. 3789 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** 16. In the result, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set aside. He is found not guilty of the offences alleged, and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** ## **SOPHY THOMAS** **JUDGE** RMV ``` TRUE COPY P.A.TO JUDGE ```