P. Gopalan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937 CRL.A.No. 396 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 679/2004 of ADDL.SESSIONS COURT (ADHOC)I, KASARAGOD DATED 17-01-2006 CP 106/2004 of J.M.F.C.,KASARAGOD ## APPELLANT/ACCUSED: -------------------- P.GOPALAN, S/O.KOGGAN, AGED 33 YEARS, PEMADUKAM, KUDLU VILLAGE. ## BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/COMPLAINANT: -------------------------- ## 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## 2. EXCISE INSPECTOR, KASARAGOD EXCISE RANGE. BY PUBLIC PROSECUTOR SMT. LISHA. M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 396 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for one month. 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 respondents. 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, Kasaragod, CRA 396/2006 2 and his party were on patrol at Pernaduka in Kudlu Village, at about 12.30 p.m. on 24.10.2001. While so, the appellant was seen coming carrying a plastic sack in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party reached him soon. On examining the plastic sack carried by the appellant, twelve 750 ml. bottles with the labels affixed on them printed with Highway Fine Whisky etc. and for sale in Karnataka only were found in it. PW1 opened one of the bottles and examined and confirmed that it contained Indian made foreign liquor. All the bottles were similar. Since the appellant has committed an offence under the Abkari Act, he was arrested then and there by PW1. The opened bottle containing 740 ml. of liquor and the 11 other bottles containing liquor were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. The opened bottle was taken as sample and it was sealed. The other bottles were put together in the said plastic sack and that sack was CRA 396/2006 3 also sealed by PW1. The sample bottle as well as the plastic sack containing the other bottles were labelled as well. Thereafter, PW1 and his party reached the Excise Range Office, Kasaragod, with the appellant, properties and the records and registered Crime No. 44 of 2001 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report thus prepared by PW1. The appellant, properties including sample and the records were produced before the Judicial First Class Magistrate's Court, Kasaragod. Ext.P3 is the List of Property. Ext.P4 is a copy of the Forwarding Note. Ext.P5 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. Ext.P7 is the requisition issued to the Village Officer, Kudlu Village, for preparing the site plan of the place of occurrence. The investigation of the case was taken over by PW5, the Circle Inspector of Excise, Kasaragod. Ext.P6 is the Report of Inspection of the place of occurrence prepared by PW5. He has questioned the CRA 396/2006 4 witnesses and recorded their statements. He has 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, Kasaragod, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P7 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 examined DW1 and marked Ext.D1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and CRA 396/2006 5 imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. The prosecution alleged that the appellant imported Indian made foreign liquor from Karnataka and possessed the same and hence, he has committed the offence under Section 55(a) of the Abkari Act. It is noted in Ext.P1 Seizure Mahazar that the labels affixed on the bottles were printed with Highway Fine Whisky etc. and for sale in Karnataka only. PW1 was the Detecting Officer and PW2 was the Excise Preventive Officer who claimed to have accompanied PW1 at the time of detecting the offence. Both of them deposed before the court supporting the prosecution case. The facts deposed by PWs.1 and 2 do not constitute the offence of import of liquor from Karnataka by the appellant. Presence of a label printed with 'for sale in Karnataka only' cannot be equated with the evidence showing import of liquor from Karnataka. CRA 396/2006 6 The ruling of this Court in **Narayanan Nair v. State of Kerala (2011(3)KLT 722)** is applicable to the facts of this case. Therefore, the evidence tendered by PWs.1 and 2 read with Ext.P1 Seizure Mahazar will not, in fact, constitute an offence under Section 55(a) of the Abkari Act. 6. PWs.3 and 4 were cited and examined by the prosecution as independent occurrence witnesses. They have not supported at all the prosecution version of occurrence. They were treated as hostile to the prosecution. The evidence tendered by PWs.1 and 2 are contradictory in certain material particulars. The Investigating Agency has not prepared a Scene Mahazar. Instead, Ext.P6 Report of Inspection of the place of occurrence has been produced and marked for proving the place of occurrence. Ext.P6 is bereft of the required details. Moreover, it has been prepared not in the presence of witnesses. Ext.P7 is a requisition issued to the Village Officer, Kudlu Village, for preparing a site plan showing the place of occurrence. The place of occurrence, CRA 396/2006 7 according to the statement made in this requisition, is the side of a road. As per that requisition of the Excise Inspector, Kasaragod, DW.1, the Village Assistant, Kudlu Village, has prepared Ext.D1 Site Plan showing the place of occurrence. The place of occurrence shown in this document is middle of the road. Therefore, even according to the prosecuting agency, there is no certainty with regard to the place of occurrence and a Scene Mahazar as required in a case of this nature has not been prepared also by the Investigating Agency. When all these facts are considered together, considerable shadow of doubt is thrown on the prosecution version of occurrence. 7. It is the prosecution case that the properties including the sample bottle were produced before the court on 24.10.2001 itself. Ext.P3 is the List of Property with which the properties were produced before the court. The office of the court made a submission before the learned Magistrate to the effect that there was no space to keep the CRA 396/2006 8 properties in the property room and hence necessary orders may be passed. The learned Magistrate, on that submission, passed an order on 27.10.2001 directing the Excise Inspector, Excise Range Office, Kasaragod, to keep the properties in safe custody until further orders. Therefore, the properties produced before the court on 24.10.2001 were directed to be returned to the Excise Inspector, Excise Range Office, Kasaragod. Where they were kept thereafter? Whether they were under safe custody? No answers are forthcoming. Whether they were returned to the court again? If so, when? No answers are there to these questions. Curiously enough, the properties were not tendered in evidence? Why? No answer is there. Whether the sample taken by PW1 from the bulk seized from the appellant, in fact, reached the chemical examiner for examination? No reliable evidence is there regarding that aspect. 8. It is reported in Ext.P5 Certificate of Chemical CRA 396/2006 9 Analysis that ethyl alcohol was detected in the sample. It is also certified in this document that the seals on the bottles were intact and found tallied with the sample seal provided. There is no evidence to show that the sample was again produced before the court after keeping the same under the safe custody of the Excise Inspector for the purpose of subjecting it to chemical analysis. Moreover, the property clerk of the court who was dealing with the samples in the court was not examined in order to prove the genuineness of the sample forwarded to the chemical examiner. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single 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 CRA 396/2006 10 contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. Such a benefit has to be extended to the appellant in this case also. A Division Bench of this Court in **Ravi v. State of Kerala (2011(3)KLT 353)** 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.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. CRA 396/2006 11 9. The alleged occurrence in this case was on 24.10.2001. The investigation of the case was conducted by PW5. He has questioned the witnesses during the period between 18.5.2004 and 29.5.2004. Why this inordinate delay occurred in conducting investigation? PW5 attempted to explain away the inordinate delay thus occurred by claiming that the delay occurred was due to the pendency of many cases for investigation. Such a bald statement made by PW5 is only a lame excuse which cannot be accepted at all. 10. 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 CRA 396/2006 12 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 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. Ext.P5 Certificate of Chemical Analysis dated 21.4.2003 reached the court on 17.7.2003. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P5. But, the Investigating Officer filed the Final Report before the court only on 31.5.2004. This inordinate delay in CRA 396/2006 13 conducting investigation and submitting Final Report is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 11. For the foregoing reasons, the conviction and sentence passed by the court below 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 55(a) 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 396/2006 14