Mohanan, S/O. Pappu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 CRL.A.No. 92 of 2008 ------------------------- AGAINST THE JUDGMENT IN SC 118/2007 of ADDITIOONAL SESSIONS COURT, THODUPUZHA DATED 31-12-2007 APPELLANT/ACCUSED:: --------------------- MOHANAN, S/O. PAPPU, AGED 47 YEARS, POKKATTUTHARAYIL HOUSE, KAMPILIKANDAM KARA, KONNATHADI VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 92 of 2008 = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court, Thodupuzha, for the offences under Section 55 (a) and (i) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: While PW4, the Sub Inspector of Police, Vellathooval Police CRA 92/2008 2 Station, was investigating Crime No. 42 of 2006 of Vellathooval Police Station on 24.2.2006, the Deputy Superintendent of Police, Munnar, informed him over phone that illicit liquor was kept and sold by the appellant at the Shine Hotel in Kambilikandam City. On getting that information, PW4 and his party reached Kampilikandam City at 5 p.m. on that day. After preparing and sending Ext.P6 Search Memorandum to the court, PW4 and his party searched that Hotel in the presence of witnesses. During search, a plastic bag containing bottles was found in the north-western room of that Hotel. On examining the contents of those bottles contained in the plastic bag, it was revealed that all of them contained liquor. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW4 then and there preparing Ext.P7 Arrest Memo. Ext.P8 is the Arrest Notice and Ext.P9 is the Inspection Memo. Four 750 ml. bottles affixed with the label written Honey Guide Brandy and three 1000 ml. CRA 92/2008 3 bottles affixed with the label written Honey Bee and one 750 ml. bottle affixed with the label written Old Adventure were found in the plastic bag. PW4 had drawn samples of 180 ml. each of liquor in 8 separate 180 ml. bottles from each of the 8 bottles containing liquor and those sample bottles were sealed and marked S1 to S8. The sample bottles, bottles containing liquor and the plastic bag in which those bottles were kept were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Vellathooval Police Station with the appellant, contraband including samples and the records. PW4 registered Crime No.45 of 2006 of that Police Station in respect of the occurrence. Ext.P5 is the FIR thus drawn by PW4. He had produced the appellant, contraband including samples and the records before the Judicial First Class Magistrate's Court, Adimaly. Ext.P10 is the List of Property and Ext.P11 is a copy of the Forwarding Note. Ext.P12 is an Ownership Certificate. Ext.P13 is a Mahazar prepared for CRA 92/2008 4 seizing a rent agreement. Ext.P14 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW4 had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. Later, PW6, the Sub Inspector of Police, Vellathooval Police Station, continued the investigation. He had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Additional Sessions Court, Thodupuzha. The court below framed a charge against the appellant alleging the offences under Section 55(a), (g) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P14 and MOs.1 to 9 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the CRA 92/2008 5 incriminating circumstances shown against him. Ext.D1 was marked on consent on the side of defence. No other evidence had been adduced by the defence. The court below, after considering the matter, found the appellant guilty of the offences under Section 55(a) and (i) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the appellant was found in possession of liquor for the purpose of sale at about 5 p.m. on 24.2.2006 and he was arrested by PW4 and the contraband was seized by him. Thereafter, PW4 reached Vellathooval Police Station and registered a case in respect of the occurrence. He had produced the appellant and the records before the court on 25.2.2006. But, the contraband liquor including the samples were not produced along with them on 25.2.2006. They were CRA 92/2008 6 produced along with Ext.P10 List of Property and Ext.P11 copy of the Forwarding Note only on 1.3.2006. What was the reason for occurring such a delay in producing the properties before the court? PW4 did not offer any explanation at all for the delay that occurred in producing the contraband including samples before the court while he was examined in chief. Later, during his re-examination, he had offered an explanation to the effect that he was engaged in the duty of destruction of ganja at Kambakallu from the evening of 25.2.2006 to the noon of 28.2.2006. Therefore, the delay occurred in producing the properties before the court. He also stated that the properties were under his safe custody till they were so produced before the court. It is in his own evidence that 40 minutes travel alone was required for reaching the court from the police station. His case is that he was engaged with other duty from the evening of 25.2.2006. On 25.2.2006, he had produced the appellant as well as many documents before the court as CRA 92/2008 7 already mentioned. Then, what was the special difficulty for PW4 to produce the properties alone before the court along with the production of the appellant and the documents on 25.2.2006. There is no explanation for the same. The explanation offered by PW4, in the facts and circumstances of the case, cannot be accepted as a valid explanation. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. A Division Bench of this Court in **Ravi v. State of Kerala (2011(3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the properties. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW4 is not proper and satisfactory. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013(3)KHC 308)** found, for the CRA 92/2008 8 reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. PW4 did not offer any valid reason explaining the delay in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone the appellant is entitled to an order of acquittal. 6. PW4, the Sub Inspector of Police, Vellathooval Police Station, is the Detecting Officer as well as the Investigating Officer in this case. He alone supported the prosecution case. PWs.1 and 2 were examined as occurrence witnesses for the purpose of proving the prosecution version of occurrence. They have not supported the prosecution case. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their case. When all the foregoing facts are considered, it is unsafe to enter a conviction against the appellant for the serious offences under Section 55(a) and (i) of the Abkari CRA 92/2008 9 Act. The appellant, at least, is entitled to the benefit of doubt. 7. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences under Section 55(a) and (i) of the Abkari Act. 8. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offences under Section 55(a) and (i) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 92/2008 10