Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938 CRL.A.No. 1084 of 2009 (A)** **---------------------------** **IN SC 125/2007 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-III, PATHANAMTHITTA** **APPELLANT(S)/ACCUSED::** **---------------------** **MOHANAN, S/O. GOPALAN, SYAMA BHAVANAM EZHAMKULAM MURI & VILLAGE,, ADOOR TALUK.** **BY ADV. SRI.S.SREEKUMAR** **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - ## Crl.A. No. 1084 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 09[th] day of March, 2017 ## **J U D G M E N T** The appellant herein challenges the conviction and sentence against him under Sections 8(2) of the Kerala Abkari Act (hereinafter referred to as 'the Act') in S.C.No. 125 of 2007 of the Court of Session, Pathanamthitta. 2. The prosecution case is that at about 11.30 a.m. on 11.8.2002, the appellant was found possessing 3 litres of arrack in a white jerry can of 5 litres capacity. The offence was detected by a Squad led by the Revenue Divisional Officer, Adoor. The said Squad consisted of some Police Officers, revenue officers, and some Abkari Officers, including Preventive Officers. The accused was arrested on the spot by a Preventive Officer of the Squad, and the plastic can containing arrack was seized by him as per mahazar. From the total quantity, sample was also taken by him in two bottles (200ml each). The accused and the properties ## **Crl.A. No. 1084 of 2009** **-2-** were produced at the Excise Range Office where an Excise Inspector registered the crime against the accused. Investigation was taken over by another Excise Inspector, and he submitted final report before the Judicial First Class Magistrate Court, Adoor. 3. After complying with the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session from where the case was made over the learned Additional Sessions Judge (Adhoc), Fast Track Court-III, Pathanamthitta, for trial and disposal. 4. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. The prosecution examined 6 witnesses and proved Exts.P1 to P7 documents. 5. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and maintained a defence that this is a false case foisted against him due to political enmity. He also examined a witness on **Crl.A. No. 1084 of 2009** **-3-** his side as DW1 in defence. MO1 plastic can was identified during trial by the material witnesses. 6. On an appreciation of the evidence, the trial court found the accused guilty under Section 8(2) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for 1 ½ years, and to pay a fine of 1 lakh, by₹ judgment dated 21.5.2009. Aggrieved by the judgment of conviction, the appellant has come up in appeal. 7. The conviction in this case is assailed by the defence on two legal grounds. One is the delay of years in submitting the final report, and the other is that seal was not affixed by the detecting officer on the properties, or in the mahazar, and that the specimen seal was also not produced into court by way of forwarding note. Yet another important point argued is that the sample bottle for analysis was sent from the court on 27.8.2002, but it reached the hands of the chemist only on 24.9.2002. It is not known when exactly the sample was analysed at the laboratory. Of course, it is true **Crl.A. No. 1084 of 2009** **-4-** that after detection, and the process that followed on the next day, including production of the accused and the properties in court, the crime went unattended for years, and final report came only on 6.12.2006. The contention of the defence is that long delay in submitting final report will vitiate the whole prosecution, and the accused is entitled for acquittal. I do not agree on this aspect. This is a case where final report was submitted by the Excise Inspector well within the period of limitation prescribed by the Code of Criminal Procedure. Long delay in submitting final report can be considered by the court only as a circumstance along with many circumstances and infirmities. The accused will also have to prove that some prejudice was caused to him by such delay. In this case, there is no such case of prejudice. Of course, it is true that the main piece of evidence in this case is the evidence regarding detection. That was on 11.8.2002. The properties and the accused were produced in court without delay. I find that this is not a ## **Crl.A. No. 1084 of 2009** **-5-** case where any sort of prejudice was caused to the accused by the delay. As already observed, this delay will assume importance only as one of the many circumstances which may go to the benefit of the accused. Delay as such, without the aid of any other circumstance, will not be a ground to set aside the conviction, because the final report was submitted within the period of limitation prescribed under the law. 8. Of the six witnesses examined by the prosecution, PW2 is the Preventive Officer who detected the offence, PW3 is the Deputy Tahsildar who witnessed the detection as a member of the Squad led by the RDO, and PW1 is an independent witnesses examined by the prosecution. PW4 is the Excise Inspector who registered Ext.P4 crime and occurrence report on the same day, PW5 is the Excise Inspector who conducted investigation, and submitted final report in court, and PW6 is the Clerk who dealt with the properties in the Magistrate's Court, and ## **Crl.A. No. 1084 of 2009** **-6-** forwarded the sample for analysis to the laboratory. The accused examined DW1, who is a friend of his, to prove that this is a false case foisted against the him due to political enmity. He does not explain why the Excise Officials, or the RDO, or the Deputy Tahsildar should foist such a false case against the accused. I find that his evidence is quite shabby and artificial. 9. The detection in this case was made by a Preventive Officer of the Excise Range, Adoor. The detection was made on 11.8.2002. As on that date, Preventive Officers of the Excise Department had powers of detection as per the Government Order S.R.O.No. 234/1967. Of course, the Squad was led by the RDO, Adoor, and the said Squad consisted of officials of the Police Department, the Excise Department, and also the Revenue Department. The detection was made by the Preventive Officer in the presence of all the members of the Squad consisting of a Deputy Tahsildar, and also the Excise Officials. PW3 is the ## **Crl.A. No. 1084 of 2009** **-7-** Deputy Tahsildar who witnessed the detection. PW1 turned hostile to the prosecution during trial. However, he identified his signature in the detection mahazar, and also in the arrest memo. He also practically stated that he had seen the Excise Officials and the Deputy Tahsildar at the scene of detection. He also stated that a can containing arrack was there when he put his signature in the mahazar. This means that this witness had in fact witnessed the seizure of something from the possession of the accused by the Excise Officials. But during trial, he turned hostile to help the accused. 10. PWs 2 and 3 are the material witnesses. Both the witnesses have given consistent and definite evidence regarding the process of detection. They are consistent that the accused in this case was seen carrying a plastic can in his hands by the Squad led by the RDO on 11.8.2002. PW2 examined the can on suspicion. He was convinced by taste and odor that it was arrack. The accused was arrested by ## **Crl.A. No. 1084 of 2009** **-8-** him on the spot in the presence of the other officers, and the can containing arrack was seized. Two samples of 200ml each in two bottles of 375 ml were also taken by him at the spot of detection. 11. Now let me examine the other material aspect raised by the defence. It is seen from the Chemical Analysis Report that the sample was entrusted to one Excise Guard from the Magistrate's Court on 27.8.2002, but it reached the hands of the Chemist only on 24.9.2002. The said Excise Guard was not examined as witness to explain the said delay. Of course, the report shows that the seal on the sample was found tallying with the specimen provided. It is not known what exactly is the specimen provided. The mahazar does not contain the specimen seal. The prosecution has also not produced the copy of the forwarding note containing the specimen seal. The defence is on **Joseph** v. **State of Kerala** (2009 (4) KHC 537) = (2010 (1) KLT SN 18). As regards the absence of forwarding **-9-** ## **Crl.A. No. 1084 of 2009** note and specimen seal, the decision in **Joseph** 's case cited supra applies to this case also. This is a case where the prosecution has not provided the specimen seal. So ,it is not known with what specimen, the seal on the sample was found tallying, by the chemist. This is a ground for acquittal in this case, applying the dictum in **Joseph** 's case. But, I find that on the ground of delay, the accused cannot be acquitted. The process of detection and arrest stands well proved. But the prosecution has miserably failed to prove the other material aspect that the sample analysed at the laboratory was lifted from the total quantity of liquid seized from the hands of the accused by the Excise Officials. Failure to provide the specimen seal is a material infirmity which will affect the whole prosecution case, as laid down by this Court in **Joseph** 's case. I find that on this ground, the appellant is entitled for acquittal. In the result, this appeal is allowed. The appellant is not found guilty of the offence under Section 8(2) of the ## **Crl.A. No. 1084 of 2009** **-10-** Kerala Abkari Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) of Cr.P.C. Accordingly, the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act in SC No. 125 of 2007 will stand set aside. The appellant is released from prosecution, and the bail bond, if any, executed by him will stand discharged. Sd/- **P.UBAID** **JUDGE** ds //True copy// P.A. to Judge