Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937** ## **CRL.A.No. 1215 of 2006 ( )** **--------------------------AGAINST THE ORDER/JUDGMENT IN SC 39/2005 of ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA DATED 15-05-2006 -------------------------------------** **APPELLANT(S)/ACCUSED: ------------------------------------** **MOHANAN, AGED 44 YEARS, S/O.KARUNAGARAN,, PUTHUPPARAMBIL HOUSE, BETHERI KARA, VATHIKUDY VILLAGE.** **BY ADV. SRI.A.C.DEVY** ## **RESPONDENT(S)/STATE:** **----------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MURRICKASSERY - THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.AV** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1215 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 15[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thodupuzha, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year 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: PW4, the Sub Inspector of Police, Murickasserry Police CRA 1215/2006 2 Station, and his party were on patrol at about 3 p.m. on 13.4.2003. While so, PW4 received reliable information that the appellant was manufacturing arrack and selling the same in his house at Bethal in Vathikudy Village. Therefore, PW4 and his party reached that house. After preparing and sending a Search Memo to the court, the police party searched that house in the presence of witnesses. The appellant was present there. During search, a 35 litre jerrycan was found in the southern room of that house. On examining the jerrycan, about 17.5 litres of arrack was found in it. Therefore, PW4 arrested the appellant then and there. On further search, a 100 litre black jar was found in the courtyard adjacent to the south-western corner of that house. On examining that jar, full of wash used for manufacturing arrack was found in it. Vessels and utensils used for manufacturing arrack were also found nearby. PW4 had drawn three samples of arrack in 375 ml. bottles from the bulk contained in the 35 litre jerrycan. Those samples CRA 1215/2006 3 were sealed and labelled. He had also drawn three samples of wash in three 180 ml. bottles from the bulk contained in the said jar. Those samples were also sealed and labelled. The jerrycan containing bulk of arrack was also sealed and labelled. PW1 had collected 10 litres of wash from the bulk contained in the jar in a 10 litre jerrycan and rest of the wash was destroyed. The jerrycan containing 10 litres of wash was also sealed and labelled. All the items mentioned were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Murickasserry Police Station, with the appellant, properties including samples and the records. PW4 registered Crime No. 51 of 2003 of that Police Station in respect of the occurrence. Ext.P4 is the FIR thus drawn by PW4. He had produced the appellant, properties including samples and the records before the Judicial First Class Magistrate's Court, Idukki. Ext.P5 is the list of Property. Ext.P6 is a copy of the Forwarding Note. Ext.P7 is the CRA 1215/2006 4 Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. Ext.P8 is an Ownership Certificate. PW4 had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. PW5, the Sub Inspector of Police, Murickasserry Police Station, 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 (Ad hoc)-I, Thodupuzha. The court below framed a charge against the appellant alleging the offence under Sections 8(1) and (2) and 55(g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 6 and marked Exts.P1 to P8 and MO.1 to MO.4 series. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. Ext.D1 was CRA 1215/2006 5 marked on the side of defence on consent. No other evidence had been adduced by the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(g) of the Abkari Act. 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 against him. It is the prosecution case that the appellant was found in possession of arrack, wash and vessels and utensils used for manufacturing arrack at about 3.15 p.m. on 13.4.2003 and PW4 arrested him and the properties were seized. But, he had produced the properties with the samples before the court only on 21.4.2003 as evident from Ext.P5 List of Property. PW4 attempted to explain the delay that occurred in producing the properties before the court as follows: CRA 1215/2006 6 Since there were holidays in April in connection with Easter and Vishu, he had kept the material objects under his safe custody. When the court opened after holidays, the properties were produced before the court along with the List of Property and Forwarding Note on 21.4.2003. This explanation offered by PW4 cannot be accepted as satisfactory for reasons. The alleged occurrence was on 13.4.2003. PW4 himself produced Ext.P1 Seizure Mahazar and Ext.P4 FIR before the court on 14.4.2003. Therefore, what was the special reason that prevented PW4 from producing the properties before the court on 14.4.2003? There is no answer for the same. The explanation that the court remained closed in connection with the holidays for Easter and Vishu and hence he could produce the properties only on its reopening i.e., on 21.4.2003 cannot be accepted. The Government Calendar for the year 2003 shows that working days viz. 14, 16 and 19 intervened during the period between 13.4.2003 and 21.4.2003. This fact falsifies CRA 1215/2006 7 the statement made by PW4 in regard to the holidays that prevented him from producing the properties before the court. Therefore, there is no satisfactory explanation for the delay that occurred in producing the properties before the court. 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. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013(3)KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. The explanation contemplated in the ruling of this Court in **Ravi v. State of Kerala (supra)** 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 CRA 1215/2006 8 is not proper and satisfactory. Therefore, the 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. The prosecution case is that PW4 and his party conducted the search in the house of the appellant after preparing and sending a Search Memo to the court. But, no such Search Memo has been marked in this case. PWs.1 and 2 were cited and examined by the prosecution for the purpose of proving the prosecution version of occurrence. But, they have not supported the prosecution case. They were declared hostile to the prosecution. On considering the facts and circumstances adverted to in this judgment, it is unsafe to convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. CRA 1215/2006 9 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 offence under Section 8(1) and (2) 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 offence under Section 8(1) and (2) 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 1215/2006 10