Mohanan M.P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **CRL.A.No.2479 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1551/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THALASSERY** ## **APPELLANT:** **MOHANAN M.P., S/O. KUNHIKRISHNAN, MEETHALEPURAYIL HOUSE, THATTACHEY,, NEELESWARAM.** **BY ADVS. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR)** ## **RESPONDENT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.D.CHANDRASENAN, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.2479 OF 2007 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## CRL.A.No.2479 OF 2007 ------------------------------- ## **JUDGMENT** Dated this the 23rd day of February 2021 Appellant is the accused in S.C.No.1551/2005, on the file of the Additional Sessions Judge (Adhoc-I), Thalassery. The above case is charge sheeted against the appellant alleging the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 20.9.2004 at 5.50pm the accused was found transporting 12 bottles of 750ml each Indian made foreign liquor which is meant for sale in Pondicherry State. 3. To substantiate the case, the prosecution examined PW1 to PW3. Exts.P1 to P7 are also marked on the side of the prosecution. 4. After going through the evidence and CRL.A.No.2479 OF 2007 3 documents, the trial Court found that the accused committed the offence punishable under Section 55(a) of the Abkari Act. The accused were sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, the accused is directed to undergo simple imprisonment for 15 days. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the accused in this case. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The counsel for the appellant submitted that there is a delay of 5 days in producing the contraband before the court as evident from page 5 of the impugned judgment. The counsel also submitted that the property list is not even produced before the court. The counsel submitted that for these reasons the appellant is entitled to the benefit of doubt. 7. The learned Public Prosecutor submitted CRL.A.No.2479 OF 2007 4 that, in the light of the oral and documentary evidence, the offence against the accused is proved, and there is nothing to interfere with the conviction and sentence imposed on the appellant. The learned Public Prosecutor also submitted that the evidence of PW1 is corroborated with PW2 the independent witness. 8. The point for consideration is that, whether the appellant/accused committed the offence under Section 55(a) of the Abkari Act. 9. Admittedly, there is a delay of 5 days in producing the contraband articles before the court. There is absolutely no proper explanation for the delay in producing the contraband. PW3 the Investigating Officer deposed that, because of his other official duty he was not able to produce the property before the court immediately after the detection. This is not a proper reason for the delay in producing the contraband when the statute mandate that the CRL.A.No.2479 OF 2007 5 property should be produced forthwith. The officer concerned cannot escape by simply stating that there was urgent other duties in his office. In this case there is no proper explanation for the delay in producing the contraband article before the court immediately after decision. 10. The seizure of the contraband in this case was on 20.9.2004. The sample reached the court only on 25.9.2004 There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also 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 : CRL.A.No.2479 OF 2007 6 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.” 11. Similarly, the property list is also not marked in this case. That is fatal to the prosecution. 12. The relevancy of property list in abkari cases is considered by this Court in several judgments. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the CRL.A.No.2479 OF 2007 7 Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal 8 CRL.A.No.2479 OF 2007 to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked by the prosecution, that itself is a ground for acquittal. 13. 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 appellant/accused as per the judgment dated 16/11/2007 in S.C. No.1551/2005, on the file of the Additional Sessions Judge (Adhoc-I), Thalassery 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** ska