Prabhakaran N.S. v. Excise Inspector, Balussery & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929** **CRL.A.No.1706 of 2003 (D)** **-------------------------------** **SC.57/2000 OF ADDL. DISTRICT & SESSIONS COURT FAST TRACK (ADHOC II), KOZHIKODE.** **....................** ## **APPELLANT: ACCUSED:** **---------------------------** **PRABHAKARAN N.S., S/O.RAMANKUTTY NAIR, AGED 42 YEARS, PINDAMNEEKKYMEETHAL HOUSE, PANAGAD AMSOM, KOYILANDY TALUK, KOZHIKODE DIST.** **BY ADV. SRI.R.SUDHISH SMT.MANJU SUDHISH** ## **RESPONDENTS: COMPLAINANT/NOT PARTY:** **----------------------------------------------------** **1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, BALUSSERY, KOZHIKODE DIST.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.V.T.MOHANAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------Crl. Appeal No.1706 of 2003 -----------------------------------------------Dated this the 11[th] day of January, 2008 ## **JUDGMENT** The accused convicted for offence under Section 55(a) of the Abkari Act vide judgment of the Additional Sessions Court (Fast Track) Adhoc-II, Kozhikode in S.C.57/2000 and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for six months is the appellant. 2. It is the prosecution case that at 6.45 p.m on 28/10/97 the appellant was found in possession of five litres of illicit arrack in a plastic can on the public road in front of the saw mill of Nadukandy Appukkutty in Kannadipoyil at Panangad, by PW1 and party and thus he has committed an offence punishable under Section 55(a) of the Abkari Act. Crl. Appeal No.1706 of 2003 -2- 3. Prosecution examined PWs.1 to 4; got marked Exts.P1 to P8 and got identified MO1. On the prosecution closing their evidence the appellant/accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved accused. 4. It is contended before me by the learned counsel for the appellant that the material object in the case was being produced before court only on 01/11/1997 whereas the Crl. Appeal No.1706 of 2003 -3- alleged seizure was at 6.45 p.m on 28/05/1997; that there is a delay of three days in producing the material object before court; that there is no explanation for PW1 as to how it so happened that the material object forwarded by him along with Ext.P6 forwarding note did not reach court till 01/11/1999 when he admits that receipt of material objects in court are usually acknowledged and that the preventive officer and the excise guard with whom PW1 has deposed that he has forwarded the material objects to court has not been examined and consequently there is absolutely no explanation in the case for PW1 who has despatched the articles to court on the very same day as to why it did not reach court till 01/11/97; that it casts a cloud on the prosecution case and that in a case of this nature which invites serious consequences of imprisonment and fine of a minimum amount of Crl. Appeal No.1706 of 2003 -4- Rs.1 lakh, such laches on the part of the prosecution cannot be taken lightly and that the accused therefore, deserves an acquittal. 5. It is further contended by the counsel for the appellant that the investigation took about three years but all the same, he has no answer as to how that has prejudiced the appellant/accused. In the circumstances, the only point that deserves to be considered is the first point advanced by the counsel for the appellant. 6. Ext.P1 is the Scene Mahazar; Ext.P2 is the arrest memo and Ext.P3 is the crime and occurrence report; all prepared on the very date of occurrence as seen from the date which those documents bears. The date on which Exts.P1 and P2 are produced before court is not discernable. Ext.P3 mahazar was produced before court only on 27/09/1999, one year and eleven months after the occurrence and after Crl. Appeal No.1706 of 2003 -5- preparation of the said mahazar. Ext.P4 is the remand report that is seen dt.29/10/1997 and was also produced before court on the same day at 11.45 a.m. Ext.P5 is the list of 'thondi' articles produced in the case. It shows that it was received by the Magistrate only on 01/11/1997 whereas Ext.P5 property list is dt.28/10/97. Ext.P6 duplicate copy of forwarding note is also dated 28/10/97. PW1 has given evidence that the material objects were being caused to be produced by him by deputing a preventive officer and a guard and that on the very next day of the detection and seizure the accused along with the remand report and the 'thondi' articles with the list of 'thondy' articles was produced before court. He has also admitted that for all the material objects produced in court acknowledgment is given. The prosecution has no case that the date of receipt shown in the Crl. Appeal No.1706 of 2003 -6- property list in the order of the Magistrate as 01/11/97 is not the date on which it was produced before court and that it was produced before court on 29/11/1997 itself as stated by PW1. PW1 has stated even in chief examination that the material objects were received in court only on 01/11/1997 as seen from Ext.P5 but that he is not aware as to how it so happened and that he has produced those material objects including the sample along with forwarding note on the very next day of registration of the crime. 7. PW2 is a preventive officer who had accompanied PW1 in the detection and seizure and he has spoken to the procedure adopted in effecting the arrest, seizure etc. He is also an attestor to Ext.P1 mahazar. He has deposed that the mahazar was being written by Excise Guard/Mohanan on dictation given by him. He has no case that he has produced the material Crl. Appeal No.1706 of 2003 -7- objects before court. PW1 also does not say that it was PW2 along with a guard who were deputed to produce the material objects before court. 8. When PW1 himself pleads ignorance as to why it so happened that the material objects were produced before court only on 01/11/97 though it was sent by him through a preventive officer and a guard on 29/10/97 itself, it stands unexplained as to where the material objects were for three days in between 29/10/97 and 01/11/1997. Obviously, PW1 who has effected the seizure or PW2 was not in custody of those material objects. There is no evidence as to who was in custody of the material objects for those three days and nobody has been examined to explain the said delay. 9. PW3 who has been examined as an attestor to Ext.P1 has turned hostile and Crl. Appeal No.1706 of 2003 -8- despite cross examination by the Public Prosecutor, nothing could be brought out to support the prosecution case. PW4 was a subordinate officer of PW1 but on retirement of PW1 it was he who conducted the investigation in the case. He also states that the material objects were being forwarded to court by PW1 and that he is also not aware as to the delay in producing the arrest memo before court. Thus, on the whole, as rightly contended by the counsel for the appellant, there is absolutely no evidence as to where the material objects were for three days before its production before court and there is no explanation at all as to whether it was in legal custody or not. Consequently, therefore, as argued by the learned counsel for the appellant there is no guarantee that the material objects which were subjected to chemical examination were the very same Crl. Appeal No.1706 of 2003 -9- material objects that were taken into custody by PW1 on 28/10/97. 10. It is contended by the learned Public Prosecutor that in Ext.P8 the Chemical Analyst has observed that the seal was in tact. There is no evidence as to whether the seal affixed on the sample was seal in the exclusive custody of PW1 and as to whether a preventive officer will not be having a seal of the same nature or the guard will not be having access to a seal of that nature. If either the preventive officer or the guard with whom PW1 entrusted the material objects including the sample for being produced in court on 29/10/97 was having the opportunity to make use of the selfsame seal there is no meaning in saying that the Chemical Analyst has observed that the seal was in tact. 11. When the Abkari Act provides very stringent punishment under Section 55(a) for Crl. Appeal No.1706 of 2003 -10- offences of this nature the prosecution cannot deal with matters so very casually when it interferes with the liberty, freedom and proprietary rights of the accused. This court cannot countenance the unexplained possession of the contraband namely the material objects and the sample for three days in between 29/10/97 and 01/11/97 lightly especially when the minimum fine that has to be imposed for the offence under Section 55(a) of the Abkari Act as per Section 55(1) is Rs.1 lakh and the term of imprisonment is to extend up to ten years. 12. The learned Public Prosecutor submits that in view of the decision of this Court in _Kunhikannan v. State (2006(4) KLT 469)_ the delay of three days in producing the material objects before court cannot be stated to be fatal as in that case this Court held that four days' delay in producing the seized article in court Crl. Appeal No.1706 of 2003 -11- is not irregular. The said decision has however, no application to the facts of this case as in the instant case, the custody of the contraband produced before court in between 29/10/97 when it parted from the hands of PW1 till 01/11/97 when alone it was produced before court is not even attempted to be explained and even PW1 has stated that he is not aware as to why it so happened that it was produced before court only on 01/11/97. In the circumstances, the decision cited is of no help to the respondent. 13. On considering the entire circumstances of the case, I am of the view that the appellant should not have been found guilty of the offence under Section 55(a) of the Abkari Act and convicted and sentenced for the said offence when the prosecution case does not stand established beyond reasonable doubts. Crl. Appeal No.1706 of 2003 -12- 14. In the result, allowing this appeal, I set aside the conviction and sentence passed against the appellant and acquit the appellant of the offence under Section 55(a) of the Abkari Act. His bail bond shall stand cancelled. K.P.BALACHANDRAN, JUDGE kns/-