Mundakkal Devassia @ Vaval Devassia v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939** ## **CRL.A.No. 378 of 2007 ( )** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 511/2002 of ADDITIONAL SESSIONS COURT, (ADHOC-III), THALASSERY DATED 19-01-2007** **APPELLANT(S)/ACCUSED:: ---------------------** **MUNDAKKAL DEVASSIA @ VAVAL DEVASSIA, S/O.MATHAI, AGED 48 YEARS,, KELAKAM AMSOM, ADAKKATHODU,, KANNUR.** ## **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT(S)/COMPLAINANT:: ---------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.378 of 2007** **- - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of July, 2017** ## **J U D G M E N T** This appeal is preferred against the judgment of conviction and sentence dated 19.1.2007 made in SC 511/2002 on the files of the Additional Sessions Court, Adhoc-III, Thalassery. The conviction is under Section 8 (2) of the Abkari Act. The sentence is to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default simple imprisonment for six months. 2. The facts relevant for consideration of this appeal is as follows: On 8.8.2001 at about 19.15 hours, the appellant herein was found in possession of 5 ltrs. of illicit arrack at a place known as Adakkathodu and thereby committed an offence under section 8 (2) of the Abkari Act. After detection, the accused was arrested, contraband seized, sample lifted and after reaching at the police station, a crime was registered. The thondy articles and the accused 2 Crl.A.No.378 of 2007 were produced before the concerned Magistrate. After investigation, a final report was also filed. Before the trial court, PWs 1 to 5 were examined and Exts.P1 to P7 were marked. MO1 was also identified. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant vehemently argued before me that here is a case where the investigation was conducted by a police officer who was not an abkari officer. It caused prejudice to the appellant and on that count itself, the appellant is entitled for an acquittal. 4. The next point argued before me is that, in this case, when appreciating the materials, the court below committed an error. It is the submission that the prosecution got a definite case that after seizure, a lable giving details was pasted not only on the sample collected but also on the alleged cannas in which the accused was carrying the contraband. It is the submission that Ext.P4 is the list of the property sent to the Magistrate. As per item No.1 the property transmitted to the court was a black Crl.A.No.378 of 2007 3 coloured can with full of arrack. But the point stressed is that therein no description was given to the effect that it contained any label. At the very same time, the learned counsel brought to my attention that item No.2 is the sample bottle whereas it was categorically stated that it was a sealed bottle. When one of the article was described as a sealed bottle and the description “seal” is missing in respect of the other one, then the only inference that can be drawn is that it was not a sealed can. If that be so, the submission made before me, is that there is no guarantee that the article produced before the court was not a tampered one. It is also the submission that there is nothing before the court that under what condition it was actually kept at the police station after the seizure and production before the court. It is also pertinent to note that there is nothing before the court that where the Sub Inspector has kept the contraband before producing it before the magistrate. It is also submitted before me that the arrest memo which was marked as Ext.P2 will show that the 4 Crl.A.No.378 of 2007 officials were not hesitant to tamper the documents. To substantiate the argument, he brought to my notice Ext.P2 and submitted that it is a document assumed to be prepared from the site of arrest. But a bare perusal of the said document would reveal that, it was not so. It contained the crime number. When the crime number is therein, the only inference that can be drawn is that it was a document prepared after registration of the crime. When the prosecution got a categoric case that the appellant herein was arrested from the spot and after preparation of a seizure mahazar, he was taken to the police station and thereafter a crime has been registered. But when the arrest memo contains the crime number thus it can be seen that first there was registration of crime, thereafter documents were created in tune with the allegations made in the FIR. Thus, it is submitted before me that on appreciating all these facts, the appellant is entitled for an acquittal. 5. I heard the learned Public Prosecutor who submitted before me that the crime number seen in the Crl.A.No.378 of 2007 5 arrest memo is only an indication that it was also filled up when accused was produced before the court to facilitate to file it along with the appropriate case bundle i.e. along with FIR, seizure mahazar etc. The next point argued before me is that in the property list, it is true that item No.1 was not stated as sealed. But only a description which was required to identify the article is given therein. It is only a description of an article forwarded to the court and when the court took the article, they will verify to see whether the article forwarded is tallying with the description. For that limited purpose description of the entries are made. Under such circumstances, non mentioning of labelling in the property list was not fatal. The next point argued before me is that in this case, it is true that the investigation was done by an officer at another police station but it is only to avoid a situation where detection and investigation was done by the same officer. In so many cases, this court is deprecated the practice of detection and investigation by the same officer. To avoid such a situation, this procedure was Crl.A.No.378 of 2007 6 adopted. When the major portion of the investigation will be over by the detection itself, only because a portion of the investigation was done by an officer who was not authorized will not vitiate the proceedings. It is the submission that it is to be remembered that in this case, the final report was filed by a competent abkari officer who was examined as PW3. 6. I perused the documents. In this case the investigation was done by PW5. Admittedly he was not a police officer of Kelakam police station. His evidence itself was that as directed by the C.I. of Peravur, he has investigated crime No.139/2001 of Kelakam police station. In this regard, the dictum laid by this court in **Hamsa Koya v. State of Kerala [2015 (2) KHC 206]** is relevant to be noted. There, this court held that since the investigation of the case had been conducted by an incompetent officer, the court below had no jurisdiction to take cognizance of the offence alleged in the compliant filed, based on such investigation. The dictum is squarely applicable in this case. Crl.A.No.378 of 2007 7 It is also relevant to note that in the arrest memo, the crime number was given, that also, cast some suspicion. Thus, when the investigation was by an incompetent officer it can be only said that the appellant is entitled for benefit of doubt, especially when the arrest memo contained the crime number i.e. explicit reliance cannot be made upon documents produced by the prosecution, when prima facie doubts regarding its tampering is evident. Under such circumstances, the appellant is given benefit of doubt. Hence, this appeal is allowed setting aside the conviction and sentence imposed against the appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at liberty. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/