Rajan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 8 [ TH ] DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 2534 OF 2012 ``` ``` AGAINST THE JUDGMENT DATED 09.11.2012 IN CRA 762/2011 OF IIIRD ADDITIONAL SESSIONS COURT, KOZHIKODE SC 295/2010 OF ASSISTANT SESSIONS COURT, KOYILANDY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RAJAN, AGED 44 YEARS, S/O.GOPALAN, THARIPPAKKUNIMALAYIL HOUSE, MANNAMPOYIL BALUSSERY, KOYILANDY TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031. ``` ``` SHRI RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.2534 of 2012 2 ## **O R D E R** This revision is at the instance of the accused in S.C.No.295 of 2010 on the file of Assistant Sessions Judge, Koyilandy, assailing the judgment in Crl.Appeal No.762 of 2011 on the file of IIIrd Additional Sessions Judge, Kozhikode, which upheld his conviction and sentence under Section 8(2) of the Abkari Act. 2. Prosecution case is that on 18.09.2008, at 06.45 p.m., he was found in possession of ten litres of illicit arrack in a ten litre can at Mannampoyil Desom at Balussery. PW1-the preventive officer attached to Balussery Excise Range Office and party detected the offence, while on patrol duty. The contraband was seized and the revision petitioner was arrested at the scene of occurrence itself. After completing all the legal formalities, the revision petitioner was produced before the Excise Range Office along with the articles seized and the records prepared. PW6-the Excise Inspector registered the crime and PW7 investigated the Crl.R.P No.2534 of 2012 3 case and laid charge-sheet against the revision petitioner under Section 8(2) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Section 8(2) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 7, marked Exts.P1 to P7 and identified MO1 to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and Ext.D1 was marked from defence side. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 8(2) of the Abkari Act and he was sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1,00,000/with a default sentence of simple imprisonment for three months. 5. Aggrieved by the conviction and sentence, the Crl.R.P No.2534 of 2012 4 revision petitioner preferred Crl. Appeal No.762 of 2011. The appellate court, on re-appreciation of the facts and evidence, found that there was nothing to interfere with the conviction and sentence imposed by the trial court, and hence dismissed the appeal, against which he has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the courts below. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. PW1-the detecting officer and PW2 the Excise Guard, who was accompanying him, fully supported the prosecution case, though PWs 3 and 4, the independent witnesses, turned hostile to the prosecution. PW7 investigated the case, and laid charge-sheet against the revision petitioner. 9. Learned counsel for the revision petitioner is assailing the judgment on the reason of delay in sending the sample for chemical analysis, and for non-examination of Crl.R.P No.2534 of 2012 5 the Thondy Clerk, as well as the Excise Guard, to explain the reasons for delay. 10. Ext.P1 arrest memo shows that the revision petitioner was arrested on 18.09.2008 at 6.45 p.m. ExtP2 seizure mahazar was also prepared on 18.09.2008 at 06.45 p.m. in the presence of independent witnesses. The seizure mahazar contains specimen impression of the seal, which was affixed on the sample bottle. Ext.P5 search list shows that the contraband articles along with the sample bottle were produced before the jurisdictional Magistrate on 18.09.2008 itself, and so there was no delay in producing the sample before the court. Ext.P7 chemical report shows that the sample was sent to the Chemical Examiner’s Laboratory on 13.11.2008 and it reached the Laboratory on the very same day. Ext.P6 forwarding note contains the specimen impression of the seal and the name of the Excise Guard with whom the sample was forwarded to the Chemical Examiner’s Laboratory. So in fact, there was no delay in producing the sample before the court or for reaching the Crl.R.P No.2534 of 2012 6 sample before the Chemical Examiner’s Laboratory, after it was forwarded from court. 11. The contention of learned counsel for the revision petitioner is that though the sample bottle was produced before court on 18.09.2008, it was sent to the Chemical Examiner’s Laboratory only on 13.11.2008 with a delay of almost 55 days. When the sample bottle was produced before court in a sealed condition and the seal tallied with the specimen impression of the seal found in the seizure mahazar and forwarding note, and the Chemical Report also shows the sample bottle intact with the seal affixed, unless and until there is specific reason to allege tampering, the revision petitioner cannot plead any prejudice due to the delay of 55 days in sending the sample from the court to the Laboratory. So, that delay is not fatal to the prosecution case. 12. Another contention taken up by learned counsel for the revision petitioner is that though the occurrence was on 18.09.2008, PW7 took over the investigation only on Crl.R.P No.2534 of 2012 7 03.10.2009 as deposed by him, and the final report was filed on 28.10.2009. The Chemical Report is dated 22.06.2009 and the final report was filed just four months thereafter. Learned counsel for the revision petitioner is relying on the decision **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** to say that every investigation into the offences under the Abkari Act shall be completed without unnecessary delay as mandated in Section 50 of the Act. The delay involved in the decision **Moothedath Sivadasan’s** case cited _supra_ was two years. Here the occurrence was on 18.09.2008 and the final report was filed on 28.10.2009. So just after one year, the final report was filed. The revision petitioner failed to show any prejudice caused to him, by the delay of one year in filing the final report. 13. In **Ganesh Bhavan Patel v. State of** **Maharashtra [1978 KHC 637 : AIR 1979 SC 135]** , the Apex Court held that the delay may not, by itself, amount to serious infirmity in the prosecution case. But, it may assume Crl.R.P No.2534 of 2012 8 such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. If the circumstances of the case lead to the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion, it is fatal. 14. Relying on the decision of the Apex Court in **Ranbir** **and Others v. State of Punjab [1973 KHC 590 : 1973** **(2) SCC 444]** , this Court in **Santhosh T.A. and Another** **v. State of Kerala [2017 (5) KHC 107 : 2018 Crl.LJ NOC 156]** held that for the Court to take notice of delay in recording statements of the witnesses, it is necessary for the defence to question the investigating officer about it, so that he may give an explanation for it. If that is not done, the Court will ignore the delay. 15. The cross examination of PW7-the investigating office will not show that he was confronted with the delay if Crl.R.P No.2534 of 2012 9 any occurred for completing investigation and to file the final report. Moreover, the delay involved in this case is just one year and it cannot be said that there occurred any inordinate or unexplained delay in filing the final report. The final report was filed just after four months of getting the Chemical Examiner’s Report. 16. The hostility of independent witnesses also is of no significance as the testimony given by PWs 1 and 2, the official witnesses was found to be reliable and trustworthy by the trial court as well as the appellate court. As held by this Court in **Abdul Rasheed v. State of Kerala [2008 (3) KLT 150]** , the hostility of independent witnesses is not a ground to disbelieve the testimony of official witnesses if it is found reliable and trustworthy. 17. In any view of the matter, the conviction and sentence of the revision petitioner under Section 8(2) of the Abkari Act is not liable to be interfered with. He was sentenced to undergo simple imprisonment for one year and fine of Rs.1,00,000/- with a default sentence of simple Crl.R.P No.2534 of 2012 10 imprisonment for three months by the trial court and it was upheld by the appellate court also. 18. The incident in this case occurred on 18.09.2008. He was convicted by the trial court on 29.10.2011. The appellate court upheld his conviction and sentence on 09.11.2012. The revision petition filed by him was pending before this Court for the last 11 years. For all these years, he was carrying the trauma of conviction in a criminal case. Learned counsel for the revision petitioner contended that now the revision petitioner is aged 53 years and so a lenient view may be taken. Adverting to the facts and circumstances of this case, this Court is of the view that the sentence can be modified and reduced, while upholding his conviction under Section 8(2) of the Abkari Act. 19. In the result, the revision petition is allowed in part upholding the conviction of the revision petitioner under Section 8(2) of the Abkari Act, but modifying the sentence to simple imprisonment for six months and fine of Rs.1,00,000/with a default sentence of simple Crl.R.P No.2534 of 2012 11 imprisonment for two months. Set off is allowed for the period undergone in custody by the revision petitioner, during trial. 20. Registry of this Court is directed to transmit the case records to the trial court forthwith for executing the sentence without delay. The revision petition stands allowed in part, to the extent as above. Sd/- **SOPHY THOMAS, JUDGE** DSV/-