P. T. Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940 CRL.A.No. 1476 of 2006** **SC 60/2004 of ADDL. SESSIONS COURT (ADHOC)NO-1, KALPETTA** **APPELLANT/ACCUSED:** **P.T.ASOKAN, AYANIKKAL HOUSE, MOTHAKKARA, VELLAMUNDA, MANANTHAVADY,, WAYANAD DISTRICT.** **BY ADVS. SRI.V.RAJENDRAN SRI.P.SAMSUDIN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **THE EXCISE RANGE OFFICER, MANANTHAVADY THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON 16/01/2019 PASSED THE FOLLOWING:** 2 **CRL.A.No. 1476 of 2006** ## **JUDGMENT** The appeal is against the judgment dated 03/07/2006 in S.C. No. 60 of 2004 on the file of the Additional Sessions Court (Adhoc) No.1, Kalpetta. 2. The case of the prosecution is as follows: On 14.06.2001 at 2.45 p.m the appellant was found transporting 20 packets of 100 ml. Karnataka made arrack when the bus in which he was traveling was checked by Excise Enforcement and Anti Narcotic Special Sqaud and party at 2[nd] gate in Kattikulam, Thrissilery Village and alleged to have been committed offence punishable under Section 55(a) of the Abkari Act. The crime was registered at Mananthavady Excise Range. In order to prove the charge, prosecution has examined PW1 to PW5, Exts.P1 to P7 and MO1 series, MO2 series and MO3 series were marked. After evaluating the entire evidence, the lower court has sentenced the appellant to undergo R.I for one year and a fine of Rs.1,00,000/-. In default to undergo R.I for three months. Highly aggrieved by the judgment of the court below, this appeal has been preferred. The court below should have seen that there was inordinate delay in producing the contraband articles alleged to have been seized from the appellant before the court. The contraband articles were produced only on 02/07/2001 when the alleged seizure was on 3 ## **CRL.A.No. 1476 of 2006** 14/06/2001. The court below should have noticed that there were no independent witnesses, except PW3, the conductor of the bus who could not identify the appellant. The investigation details was commenced more than a year after the alleged occurrence. PW5, the Investigating Officer could not depose as to how the same was proceeded. Though the occurrence was alleged to be inside the bus no body mahazar relating to the bus was obtained. The wave length of the ticket of the appellant was not taken into custody. On the grounds urged above, the appellant prays for setting aside the conviction and sentence dated 03/07/2006 passed by the Additional Sessions Court (Adhoc) No.1, Kalpetta in S.C.No. 60 of 2004 and acquit the accused. 3. In this case, the appellant was chargesheeted by Excise Inspector, Mananthavady, Excise Range in Crime No.12 of 2001 alleging offence punishable under Section 55 (a) and 8 (1) and 8 (2) of the Abkari Act. The allegation of the prosecution is that on 14/06/2001 at 2.45 p.m, the appellant was found transporting 20 packets of 100 ml. Karnataka made arrack when the bus in which the accused was traveling was checked by Excise Enforcement and Anti Narcotic Special Squad and party at 2[nd] gate in Kattikulam, Thrissilery Village. CW1, then Excise Inspector attached to Excise Enforcement and Anti Narcotic Special Squad detected the offence and arrested the appellant with contraband articles. CW9 was the Excise Inspector, Excise Range Office Mananthavady, registered the case and laid 4 ## **CRL.A.No. 1476 of 2006** charge before Judicial First Class Magistrate-II against the appellant after completing the investigation. Preliminary investigation was done by CW8, Preventive Officer, Excise Range Office Mananthavady. After filing the charge, the learned Magistrate committed the case to Court of Sessions, Kalpetta as per his order in C.P.2/03, dated 3/2/2003 and it was made over to the Court for trial. On appearance, charge was framed against the accused under Section 55(a) of the Abkari Act. On the side of prosecution, PW1 to PW5 were examined. Exts.P1 to P7 were marked. MO1 series, MO2 series and MO3 series were identified by the witnesses. On closure of the evidence, appellant was questioned under Section 313 Cr.P.C and he has denied the entire incriminating circumstances brought against him and thereafter, he was not acquitted under Section 232 Cr.P.C and after posting the case for defence evidence, the matter was heard and found the appellant guilty under the Section mentioned above. PW1 was the Excise Inspector and PW2 was the Preventive Officer attached to the Excise Enforcement and Anti Narcotic Special Squad, Wayanad District. As per their evidence, while they were on patrol duty, they checked a K.S.R.T.C bus No.TP-9 having Registration No.Kl-11 4538 coming from Byrakuppa to Mananthavady at a place near the waiting shed of 2[nd] gate, Kattikkulam, Thrissilery amsom, Mananthavady Taluk at about 2.45 p.m on 14-06-2001. According to PW1 and PW2, the appellant was found sitting with a plastic cover in his lap on the front seat of the 5 ## **CRL.A.No. 1476 of 2006** conductor's seat, on the left side of the bus. On suspicion, the cover was verified in the presence of the conductor of the bus and the person who was sitting near the appellant. Then they found that the plastic bag contained about 20 packets of Karnataka made arrack each packet containing 100 ml arrack. Since he admitted that he was having possession of illicit arrack, he was alighted from the bus on the spot and one of the packets were opened and verified by tasting and smelling and found that it contained arrack. Immediately, Ext.P1 arrest memo was prepared and arrested the appellant from the spot. Another packet was also opened and about 200 ml arrack was taken as a sample in a 375 ml bottle. According to them, the said bottle was sealed and labeled containing signature of the appellant, PW1 and witnesses. The entire properties were seized after preparing Ext.P2 seizure mahazar. Thereafter, the appellant along with the properties and records were produced before Excise Range Office, Mananthavady on that day itself for further follow-up action. PW1 and PW2 have identified the appellant who was standing on the dock before the trial court. He also identified the MO1 series, MO2 series and MO3 series, ie 18 arrack packets, 2 empty packets and the plastic cover. PW3 was the then conductor of the bus, has deposed that the incident was occurred about 5 or 6 years back. According to him, some arrack packets were recovered from the possession of one of the travelers and a mahazar was also prepared on the spot. He has admitted that he has put his 6 ## **CRL.A.No. 1476 of 2006** signature in Ext.P1 mahazar. He has identified his signature in Ext.P1, P2 and label affixed on MO3. According to him, he could not identify the person from whom the arrack was seized by PW1. PW4 was the Excise Inspector, Excise Range Office, Mananthavady during the relevant period. According to him, PW1 and party produced the appellant along with properties on 14/06/2001. He received the same and on the basis of that he registered a crime 12/01 against the accused / appellant. The crime and occurrence report was marked as Ext.P3. According to his version, he has kept the contraband items seized as per thondi list in his safe custody and it was subsequently produced before court only on 2/7/2001, after preparing Ext.P4 property list. When he was in the box, he explained the delay in producing the contraband articles. According to him, the delay was caused due to workload and staff shortage. But the properties were in his safe custody until those were produced before Court. The carbon copy of the Forwarding Note was submitted on 2/7/2001 which was marked as Ext.P5. The report after chemical examination of the sample was marked as Ext.P6. Now, the only question to be considered is whether the latches on the part of the prosecution in producing the contraband articles before this Court is satisfactorily explained and whether it was produced with tamper proof condition. It is an admitted fact that the appellant / accused was arrested on 14/6/2001. According to the evidence of PW1 and PW2, the contraband articles alleged were 7 ## **CRL.A.No. 1476 of 2006** seized from the possession of the appellant on 14/06/2001 and the same was produced before the court only on 2/7/2001 as per the evidence of PW4, the Excise Inspector, Excise Range Office, Mananthavady. The explanation of PW4 was that due to workload and staff shortage, he has kept the contraband articles in his custody till it was produced before this Court on 2/7/2001. 4. It was held in _**Narayani v. Excise Inspector**_ [2002 (3) KLT 725] wherein it has held that if no evidence to prove the proper custody of the residue and sample, there may be a case of tampering with sample and residue and _**Rajendran v. State of Kerala**_ [2007 (1) KLT 971] that wherein it has held that the proof of proper custody is mandatory. 5. It was held in _**Sathyan v. State of Kerala**_ [2015 (1) KHC 269] that the failure to follow mandatory requirements at the time of arrest and non-production of seizure mahazar forthwith before the court are more than sufficient for doubting the genuineness of prosecution case in respect of arrest of the accused and seizure of the contraband. It was also held in _**Majeedkutty v. The Excise Inspector, Kollam Range**_ [2015 (1) KHC 424], it is held that proper investigation is a pre-requisite for forwarding a final report to concerned Magistrate. When it is evident from records that investigation conducted was not proper, it can be held that serious 8 ## **CRL.A.No. 1476 of 2006** irregularity has been committed by investigating agency. Such lapse itself is sufficient for rejecting prosecution case and acquitting accused of offence alleged against him. It was also held that the contraband articles were produced before the court after a long delay and there was no proper explanation on the part of the prosecution under whose custody the property has been kept and it was held that accused should be granted benefit of doubt in view of such lapses committed by prosecution. So the inordinate delay in producing the contraband articles before the court is sufficient enough to prove that the appellant / accused is entitled to get the benefit of doubt. Further, the learned counsel for the appellant has argued that there was a gross delay in conducting the investigation in this case. This fact has been reiterated in _**Krishnan H v. State**_ **[** 2015 (1) KHC 822], wherein it has held that the prosecution has not given any explanation as to why the they have not conducted the investigation. Section 50 of the Abkari Act mandates that investigation in the offence shall be conducted and completed without unnecessary delay. But here in this case, there is a long delay in conducting the investigation and the prosecution has not offered any explanation for the inordinate delay in conducting the investigation as well as the production of contraband articles before the court. In fact, the appellant herein was charged under Section 55(a) of the Abkari Act. The punishment under this Section is very 9 ## **CRL.A.No. 1476 of 2006** severe, so the prosecution has to conduct proper investigation in this case and also produce the contraband articles immediately after interception of the appellant / accused from the spot. In fact, the evidence of PW1 and PW2 did not state that MO'S produced before the court contained the signature of the appellant / accused, detecting officer and the independent witnesses and the fact that MO'S were produced nearly three weeks after the date of interception of the appellant / accused and the explanation which was given by PW4 is not sufficient enough to prove that sample was produced in a tamper proof condition before the court. So the petitioner is entitled to benefit of doubt. The prosecution has failed to prove that MO'S which were seized from the possession of the accused has reached the court in a tamper proof condition and on this sole ground itself, the appellant / accused is entitled to acquittal of the charges leveled against him. Moreover, the carbon copy of Forwarding Note does not contain any date, place and the specimen of the samples produced before the court and moreover, there is gross delay in conducting investigation in this case. On evaluating the entire evidence, I find that the prosecution has miserably failed to establish the charge as levelled against appellant / accused. In the result, the appeal is allowed and the conviction and the sentence passed against the appellant in S.C.No.60 of 2004 10 ## **CRL.A.No. 1476 of 2006** passed by the Additional Sessions Court (Adhoc) No.I, Kalpetta is hereby set aside. The bail bond executed by him shall stand cancelled and he is set at liberty forthwith. Sd/- **ANNIE JOHN** **JUDGE** rsr