Mohankumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 28TH DAY OF MARCH 2016/8TH CHAITHRA, 1938 CRL.A.No. 2432 of 2008 --------------------------- AGAINST THE JUDGMENT IN SC 48/2008 of ADDL. SESSIONS COURT(ADHOC II), THRISSUR DATED 18-10-2008 APPELLANT: ------------ MOHANKUMAR, S/O.SIVARAMAN NAIR POLIYADATH HOUSE, MATTATHUR VILLAGE, MANGATTIPADAM, THRISSUR DIST. BY ADV. SRI.A.C.DEVY RESPONDENT/STATE: -------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV. PUBLIC PROSECUTOR MRS. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 2432 of 2008 = = = = = = = = = = = = = = = = = = = Dated this the 28[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thrissur, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for seven years and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for two years. 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: CRA 2432/2008 2 PW7, the Circle Inspector of Excise, Excise Circle Office, Irinjalakuda, and the excise party of the Excise Range Office, Irinjalakuda, were on patrol at about 8.30 p.m. on 7.1.2002. While so, PW7 received a message that arrack was being transported in a jeep bearing Reg. No. KBE 7277. Therefore, the excise party reached in front of the Post Office at Avittappilly in Kodakara, waiting for jeep bearing Reg. No. KBE 7277. While so, the said jeep came from east to west. PW7 had given signal for stopping the jeep and, accordingly, the jeep was stopped there. The appellant was driving that jeep. Seeing the excise party, the appellant alighted from the jeep and ran away. A few persons in the excise party followed him. But, the appellant could not be taken into custody. Therefore, they returned. On examining that jeep, 21 black jerrycans of 10 litre size were found inside the jeep. On examining those jerrycans, it was found that all of them contained full of arrack. PW7 seized those CRA 2432/2008 3 21 jerrycans containing arrack and the documents and the key found in that jeep under Ext.P5 Seizure Mahazar in the presence of witnesses. The jerrycans were given numbers as 1 to 21. The arrack contained in all the 21 jerrycans were found to be alike. PW7 had drawn two samples of 375 ml. each of arrack from the jerrycans 1, 5, 10, 15 and 20. Thus, ten samples were collected by PW7 for the purpose of subjecting five samples to chemical analysis through the court and the other five samples through the Excise Department. All the sample bottles and the jerrycans containing arrack were sealed by affixing the metal seal having the impression 'H.D'. Thereafter, PW7 and his party reached the Excise Circle Office, Irinjalakuda, and registered Crime No.1 of 2002 in respect of the occurrence. Ext.P9 is the Crime and Occurrence Report thus prepared by PW7. Thereafter, on 8.1.2002, the contraband including five samples and the records were handed over to PW1, the CRA 2432/2008 4 Excise Inspector, Excise Range Office, Irinjalakuda. PW1 registered Crime No.1 of 2002 of that Range Office in respect of the occurrence. Ext.P1 is the Crime and Occurrence report thus prepared by PW1. He had produced the contraband including samples and the records before the Judicial First Class Magistrate's Court, Chalakudy, on 9.1.2002. Ext.P2 is the List of Property. Ext.P3 is a copy of the Forwarding Note. The investigation of the case was conducted by PW9. He had questioned the witnesses and recorded their statements. Subsequently, the investigation was continued by CW17, the Circle Inspector of Excise, Excise Circle Office, Irinjalakuda. He had gone to the place of occurrence and prepared Ext.P10 Scene Mahazar showing the place of occurrence in the presence of witnesses. Ext.P11 is a Location Sketch showing the place of occurrence prepared by the Village Officer, Moonnumuri. CW17 completed the investigation and submitted the Final CRA 2432/2008 5 Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thrissur, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-II, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 9 and marked Exts.P1 to P12 and MO.1 to MO.22 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. 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 heard on the question of sentence and imposed the sentence on him. CRA 2432/2008 6 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found transporting 210 litres of arrack in 21 jerrycans by a jeep at about 8.40 p.m. on 7.1.2002. Seeing the excise party, he ran away. PW7 and the excise party seized the arrack under Ext.P5 Seizure Mahazar in the presence of witnesses. Thereafter, PW7 and his party reached the Excise Circle Office, irinjalakuda, with the contraband including the samples. Next day they were handed over to PW1, the Excise Inspector, Excise Range Office, Irinjalakuda. PW1 produced them before the court on 9.1.2002. PW7 deposed that the properties were kept during night in his office and in the morning on the next day they were handed over to PW1. The evidence of PW7 does not clearly show as to whether the contraband including samples were under safe custody in that office. Going by CRA 2432/2008 7 the evidence of PW7, the contraband including samples reached PW1 in the morning on the next day. Even according to PW1, they were produced before the court only on 9.1.2002. PW1 does not say as to whether the contraband including the samples were under his safe custody after they were received by him and till they were produced before the court. The properties were produced before the court along with Ext.P2 List of Property. The office of the court made an endorsement on the reverse side of Ext.P2 that the properties were verified and received on 9.1.2002. But no endorsement on receipt of properties made by the Magistrate is seen in Ext.P2. Be that as it may. 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 property. PW1 did not say as to why he could not produce the properties before the court on 8.1.2002 itself, CRA 2432/2008 8 even though they were received by him in the morning on that day. Moreover, Ext.P2 List of Property is seen prepared on 8.1.2002. A learned Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated in that judgment, that an unexplained delay of a single day is fatal to the prosecution case. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” CRA 2432/2008 9 Therefore, the accused was found to be entitled to the benefit of doubt in that case. Such a benefit can be extended to the appellant also in the facts and circumstances of this case. 6. Exhibit P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in all the five samples. It is also certified in Ext.P4 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? It is specifically noted in Ext.P5 Seizure Mahazar that the samples and the jerrycans containing bulk of arrack were sealed with the metal seal having the impression 'H.D'. Whether the Chemical Examiner compared the seal affixed on the sample bottles with the sample seal having the impression 'H.D'. It cannot be. Ext.P3 is a copy of the Forwarding Note produced by PW1 before the court. PW1 CRA 2432/2008 10 deposed that the specimen seal appearing in Ext.P3 is that of his personal seal and that seal was affixed on the samples. Two sample seals appearing in Ext.P3 have the impression 'KMR'. Admittedly, this is the personal seal of PW1. Therefore, one thing follows. At the time of the alleged detection of the offence and seizing of the contraband, a particular seal having the impression 'H.D' was affixed on the samples and on the jerrycans. The Chemical Examiner was not given an opportunity to compare the seal thus affixed on the sample bottles with the sample of such a seal affixed on the Forwarding Note. Instead, the Chemical Examiner had compared the personal seal of PW1 affixed on the samples with the sample impression of the same appearing in the Forwarding Note. When that seal was affixed by PW1 on the sample bottles? Were they really the samples drawn by PW7 at the time of detecting the offence? The affixture of seal on the samples CRA 2432/2008 11 claimed to have been made by PW1 behind the back of any of the witnesses and producing the sample impression of that seal affixed on the Forwarding Note will not give any credibility to the samples as really drawn from the bulk of arrack allegedly seized from the appellant. If the sample of the seal affixed by PW7 on the sample bottles was provided for comparison to the Chemical Examiner by affixing the same on the Forwarding Note, the genuineness of the samples could have been ensured. But that was not done in this case. In view of these facts, there is no assurance that the samples of the contraband allegedly seized by PW7 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the samples is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken CRA 2432/2008 12 from the bulk allegedly seized from the appellant in this case. ## 7. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the CRA 2432/2008 13 absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” The Division Bench of this Court in **Ravi v. State of Kerala (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P4 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. CRA 2432/2008 14 8. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a CRA 2432/2008 15 report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. 9. The alleged occurrence in this case had taken place on 7.1.2002. The investigation was conducted by PW9, the Circle Inspector of Excise, Excise Circle Office, Irinjalakuda. He had questioned the witnesses in August, 2003 and on 13.10.2003, 7.1.2004, 28.1.2004 and 29.1.2004. No explanation was offered by the prosecution for the delayed commencement of the investigation. Ext.P4 Certificate of Chemical Analysis had been received by the court on 31.1.2002. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P4. But, the investigating agency had taken nearly 2 ½ years for submitting the Final Report before the court after the receipt of Ext.P4 by the court. The Final Report was CRA 2432/2008 16 filed only on 10.6.2004. This inordinate delay in conducting the investigation and submitting the Final Report before the court, in the facts and circumstances of the case, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 10. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. When all the foregoing facts are considered, 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 2432/2008 17 11. 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 alleged against him. 12. 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 and the bond in respect of Passport executed by him shall stand cancelled. The amounts, if any, deposited by the appellant as directed by this Court for suspending the sentence and for releasing the Passport shall be returned to him. This appeal is allowed. ## **Sd/-** ## **BABU MATHEW P. JOSEPH JUDGE** ks True copy P.S. (Hr.Gr.)To Judge CRA 2432/2008 18 CRA 2432/2008 19