Puthiyapurayil Pavithran v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938** **CRL.A.No. 915 of 2009** **AGAINST THE JUDGMENT IN SC 145/2007 OF THE ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGODE DATED 02-03-2009** ## **APPELLANT/ACCUSED** **PUTHIYAPURAYIL PAVITHRAN, S/O.RAMANI, KANDAMKUTTICHAL, VATTATHOD DESOM, MADIKKAI VILLAGE.** **BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## MARY JOSEPH, J. ---------------------------------------- Crl.Appeal No.915 of 2009 ----------------------------------------Dated this the 19[th] day of January, 2017 ## ORDER This appeal is directed against the judgment dated 02.03.2009 of the Additional Sessions Court, Ad Hoc-II, Kasaragod (for short 'the court below') in S.C.No.145/2007. 2. The appellant was found guilty by the court below for commission of the offences punishable under Section 55(a) of the Abkari Act (for short 'the Act') and convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one month. 3. The prosecution case in brief are to the following effect :- On 18.11.2003 at 6 p.m. while the Preventive Officer attached to the Excise Range, Hosdurg was conducting patrol duty along with his fellowmen at Areyi, the accused was found Crl.Appeal No.915 of 2009 -2- proceeding against them carrying a can. On suspicion, he was intervened and in the presence of people gathered there, the can was opened and inspected. It was found to contain 5 litres of liquor, which was confirmed as arrack by smelling and tasting. The accused was arrested then and there after complying with all the legal formalities, 300 ml of arrack was taken in a bottle as sample. Personal seal was affixed both on the sample and the can containing remnant liquor. Labels containing his signature as well as the signatures of the people present there was affixed on it. The specimen impression of the seal was also affixed on the label. The seizure mahazar was prepared. The articles were produced before the Excise Range Inspector, Excise Range, Hosdurg. The Crime and Occurrence Report was prepared by him. The articles were later on produced before the court. The site plan was prepared through the Special Village Officer of Hosdurg. The investigation was conducted by the Excise Inspector of Excise Range, Hosdurg. Scene mahazar was prepared and the Crl.Appeal No.915 of 2009 -3- statement of the witnesses were recorded. On obtaining the report of chemical analysis, the final report was laid before the Judicial First Class Magistrate Court-I, Hosdurg. The Magistrate took cognizance of the offence and as per order in C.P.No.143/2006, committed the case to the Sessions Court, Kasaragod and made it over to the court below for trial. 4. The court below, after hearing the learned Public Prosecutor and the learned counsel appearing for the defence and upon perusal of the materials made available by the prosecution, framed a charge against the accused under Section 55(a) of the Act. The charge when read over and explained to the accused, he pleaded not guilty and faced trial. 5. The prosecution examined 7 witnesses on its side as PWs 1 to 7. Eleven documents were marked as Exts.P1 to P10(a). After closure of the prosecution evidence, the accused was questioned under Section 313(i)(b) Cr.P.C. based on incriminating circumstances brought in evidence by the Crl.Appeal No.915 of 2009 -4- prosecution. The accused denied all the incriminating circumstances put to him. Specific pleas of innocence and false implication were also taken. But, no evidence was let in. 6. After appreciating the entire evidence on record and upon hearing the rival arguments put forth by the counsel representing the respective parties, the court below found the accused guilty of the offence under Section 8(1) of the Act and convicted and sentenced him under Section 8 (2) to undergo simple imprisonment for three months and pay fine of Rs.1,00,000/- and in default of payment to undergo simple imprisonment for one month. Aggrieved by the said judgment, the accused has approached this Court in appeal. 7. Sri.Rahul Sasi, the learned counsel and Smt.Rekha C.Nair, the learned Public Prosecutor were heard extensively on behalf of the accused and the complainant/State. 8. Sri.Rahul Sasi, the learned counsel representing the accused canvassed vehemently for a reversal of the Crl.Appeal No.915 of 2009 -5- judgment under challenge, mainly on three grounds. The first argument advanced was that the specimen seal of the Preventive Officer of Excise Range, Hosdurg, who was the detecting officer was not affixed in Ext.P2 seizure mahazar claimed by the prosecution to have prepared by him at the spot. The counsel raised a doubt that if the specimen seal was affixed on the contraband and the samples taken therefrom at the spot itself, the same must have also been affixed in the seizure mahazar and a description must have been made there. Since those were absent in Ext.P2, in the words of the learned counsel, the affixture must have been made on the contraband and sample from elsewhere and the story of detection and seizure of contraband from the place as alleged by the prosecution can only be viewed with suspicion. 9. The contention put forth by the learned counsel secondly was that three samples have not been drawn from the contraband and that is fatal to the prosecution. The counsel has also relied on an unreported ruling of a Single Crl.Appeal No.915 of 2009 -6- Bench of this Court in Crl.Appeal No.47/2006 to rest the said contention. The learned Single Judge observed on the basis of paragraph 34 of the Excise Manual that taking of at least three samples from the contraband is a mandatory requirement for the officials to be complied with in connection with seizure and held that, the non-compliance would vitiate the prosecution case. 10. The contention advanced thirdly by the learned counsel was that even though the detection, seizure, sampling and sealing of the contraband was done on 18.11.2003 and the same were produced before the Excise Range Office, Hosdurg on the day itself, but the property list and forwarding note were prepared by the Officer concerned only on 19.11.2003. The investigation was completed and final report was prepared only on 01.08.2006 and the same reached the court on 09.08.2006. Therefore, a period of 2 years and 8 months was taken by PW6 to complete the investigation process and to lay the chargesheet against the accused. On Crl.Appeal No.915 of 2009 -7- the strength of H.Krishnan v. State [2015 (1) KHC 822], it is contended that the unexplained delay in investigation would vitiate the prosecution. 11. The argument put forth, fourthly by the learned counsel for the appellant was that the materials seized have not been produced before the court, but, Ext.P10, the inventory and Ext.P10(a), photographs alone are made available by the prosecution. But the prosecution failed to question any of its witnesses with reference to those. The contention of the learned counsel in the context was that the case suffers from non-identification of the contraband allegedly seized from the spot and that is fatal. 12. In the backdrop of the contentions so put forth, the evidence on record is appraised. As I have already stated, 7 witnesses were examined and 11 documents were marked on the side of the prosecution to establish its case. PW1 is none other than the Preventive Officer of Excise Range Office, Hosdurg. PW2 is the Excise Guard who was present in the Crl.Appeal No.915 of 2009 -8- team of patrolling led by PW1. PW3 and PW7 are independent witnesses, who are attestors of Ext.P2. PW4 is the Special Village Officer of Hosdurg Village, prepared the scene plan. PW5 is the Excise Inspector of Excise Range Office, Hosdurg and PW6 is the Excise Range Inspector of Excise Range, Hosdurg, who who had conducted the investigation. 13. Ext.P1, is the arrest memo, Ext.P2, the seizure mahazar, Ext.P3, the specimen seal, Ext.P4, the site plan, Ext.P5, the scene mahazar, Ext.P6, the chemical report, Ext.P7, the Crime and Occurrence Report, Ext.P8, the property list, Ext.P9, the forwarding note, Ext.P10, the inventory and Ext.P10(a), the photograph. 14. PW1 is the detecting officer. He deposed categorically that the accused was found with a can at 6 p.m. on 08.11.2003 at a place called Areyi. He has also stated that on inspection of the Can, 5 litres of liquor was found therein, which on smelling and tasting was found to be arrack. He would also state that the accused was arrested therefrom after Crl.Appeal No.915 of 2009 -9- complying with the statutory formalities. Ext.P1 arrest memo would endorse the factum of arrest as stated by PW1. PW1 would further state that 300 ml of arrack was taken from the contraband liquor in a bottle as sample and it was sealed using the personal seal of PW1. According to him, the Can and the sample drawn therefrom were sealed and labels containing signatures of himself and PWs. 3 and 7, the independent witnesses were affixed on it. PWs 3 and 7 though denied to have witnessed the seizure and associated procedures, admitted to have attested Ext.P2 seizure mahazar. Therefore, the prosecution was successful in establishing the the detection and seizure. Through the version of PWs.5 and 6, the prosecution had also successfully established the investigation procedures and compliance of formalities under the Act. The prosecution has also succeeded through Exts.P8 and P9, the property list and the forwarding note marked in evidence that the articles had reached the court without delay. Through Ext.P6, the prosecution has succeeded in establishing Crl.Appeal No.915 of 2009 -10- that the sample drawn from the contraband was sent for chemical analysis and was found to contain Ethyl Alcohol. The version of PW1 finds corroboration with that spoken by PW2. But, Ext.P2 seizure mahazar, which the prosecution claimed as prepared at the spot on 18.11.2003, on a glance made it clear that specimen seal was not affixed on it and description regarding that is also lacking. Witnesses PWs.1 and 2 have also not stated about that. The independent witnesses who allegedly present at the spot turned unloyal to the prosecution. In the said circumstances, solely for the reason that the specimen seal does not find in Ext.P2 and description about affixture is lacking in Ext.P2, it cannot be concluded that the specimen seal was not affixed on the properties as averred by the prosecution. PW1 and PW2 were also not controverted with reference to that. Therefore, the contention is untenable. It is true that the learned Single Judge in Crl.A. No.47/2006 has found non-compliance of the direction in the Excise Mannual as fatal to the prosecution. The Abkari Act is Crl.Appeal No.915 of 2009 -11- silent regarding the number of samples to be drawn from the contraband. The Excise Mannual contains directions issued by the Excise Department to its officials and for the reason that those are not complied with by the officals, the prosecution cannot be said to be vitiated. The Mannual cannot have overriding effect on the provisions of the Act. Therefore, the contention of the learned counsel in that regard is discarded as untenable. In order to ascertain the manner in which the delay in filing the final report, would impact the prosecution case, Section 50 of the Act is extracted hereinbelow : ## “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).” ## 16. Section 50 provides that investigation in an Crl.Appeal No.915 of 2009 -12- Abkari case needs to be completed without unnecessary delay. It is also provided in the said provision that as soon as the investigation in the offence under the Act is completed, a final report shall be forwarded by the officials concerned to the court. The dictum in H.Krishnan 's case (supra) relied on by the learned counsel is squarely applicable in the context. Therefore, the unexplained inordinate delay in completing the investigation and chargesheeting the accused in a case involving an Abkari offence is fatal to the prosecution. 17. The evidence in the case on hand when analyzed, the following facts are revealed. The accused was arrested on the same day. Ext.P6 chemical report was obtained on 20.02.2004. Ex.P7 Occurrence report was prepared on the said day. It is seen from the final report that it was prepared on 01.08.2006 and reached the court on 09.08.2006. Therefore, as rightly put by the learned counsel, the final report was prepared and sent to the court after two years and 8 months from the date of seizure. The delay Crl.Appeal No.915 of 2009 -13- undoubtedly is inordinate and explanation for the delay was not spoken either by PW5 or PW6 while tendering evidence. Therefore, the unexplained delay of 2 years and 8 months in the case on hand taken to conclude the investigation and to lay the final report before the court is fatal to the prosecution. 18. The argument advanced by the learned counsel that the prosecution case suffers from want of identification of the contraband as those were not identified by PW1 or PW2. It is true that the contraband was not identified. But the corroborative evidence of PW1 and PW2 are available and those would say that the seizure, the sampling, sealing and labelling of the contraband and the sample were effected from the spot in their presence. Ext.P2 seizure mahazar also describes the procedures complied with by the officials at the spot in corroborative terms. The version of PW5 is there to say that the contraband article and the samples have reached the office on the date of seizure itself in a sealed form and affixed with labels containing the signatures of the officials as well as Crl.Appeal No.915 of 2009 -14- the independent witnesses. Exts.P8 and P9, the property list and the forwarding note are before the court to establish that the seized properties had reached the court on the succeeding date of seizure itself with the seals and labels intact. Ext.P10, the inventory sent from the court to the Assitant Excise Commissioner, Kasaragod seeking disposal of the remnant liquor would also establish that the articles reached there in proper condition with the seals and labels intact. Ext.P6, the chemical examination report also contains a mention therein that sample was received by the Chemical Examiner in a proper condition with seals intact. Moreover, the version of PWs 1 and 2 with regard to the affixture of specimen seal of PW1 on the contraband and samples and the specimen seal impression found in Ext.P9 forwarding note would make it clear that the contraband was in the custody of PW1 during the period prior to its production before the court. 19. From these circumstances, it is clear that the the sample seized from the spot was received and analyzed by Crl.Appeal No.915 of 2009 -15- the Chemical Examiner and based on that Ext.P6 was prepared. 20. In the aforesaid circumstances, the argument advanced by the leaned counsel that the non identification of the photograph would be fatal to the prosecution is not liable to be accepted. But in view of the unexplained inordinate delay of 2 years and 8 months taken by the investigating officer to complete investigation, the prosecution case suffers. The impugned judgment is liable to be set aside for the reason. In the result, the appeal stands allowed, the impugned judgment stands set aside. The bail bond stands cancelled and the accused is set at liberty forthwith. Sd/- MARY JOSEPH, JUDGE vs