RAMESH v. THE C.I OF POLICE, KUTTIADY POLICE STATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936** **CRL.A.No. 1011 of 2003 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 306/2000 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 26-05-2003.** **APPELLANT(S)/ACCUSED :** **--------------------** **RAMESH, S/O KUNKAR, PONNELAYI HOUSE, KUTTIADY AMSOM, NETTOOR DESOM, VADAKARA TALUK.** **BY ADV. SRI.SUNNY MATHEW.** ## **RESPONDENT/COMPLAINANT :** **----------------------** **THE C.I OF POLICE, KUTTIADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **amk** ## **A.HARIPRASAD, J. -----------------------------------------------Crl. Appeal No.1011 of 2003 -----------------------------------------------Dated this the 28[th] day of March, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Aggrieved by the conviction under Section 55(a) of the Abkari Act, the accused in S.C No.306/2000 on the file of the Additional Sessions Court (Adhoc II), Kozhikode has preferred this appeal. 2. Prosecution case in short is that on 12-08-1999 at 18.30 hours, the appellant was found in possession of 4 litres of illicit arrack in a 5 litre plastic can along with 8 polythene covers and a glass. The accused was apprehended with the contraband and after completing the formalities, he was produced before the court. Thereafter, the investigation proceeded and on closure of investigation, the charge was filed. The case was committed to the Court of Sessions and made over to the learned Additional Sessions Judge. At the time of trial, seven witnesses were examined and eight documents were **Crl. Appeal No.1011 of 2003 2** marked on the prosecution side. MO's 1 to 3 were also marked. Ext.D1 is the evidence on the side of defence. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant submitted that the conviction of the appellant is not sustainable because there is an unexplained delay of four days in producing the contraband article before the court. Learned Public Prosecutor submitted that the delay is explained by the Investigating Officer and therefore there is no infirmity in the prosecution case. It is further contended that all the formalities in the process of investigation have been properly conducted. 5. PW1 at the material time worked as Circle Inspector of Police. On 12-08-1999, he got reliable information that rampant sale of illicit liquor was happening at a place near Kakkat Bazar. He along with his police party went to the informed place. At that time, he found the appellant standing in **Crl. Appeal No.1011 of 2003 3** a paramba with a black can and a glass in his hands. He was questioned and the can possessed by him was scrutinised. It is seen that it was country arrack. It was also seen that the glass was used for pouring liquor. The accused was arrested for possessing illicit liquor. PW1 deposed that he prepared Ext.P1 mahazar from the place of occurrence. It contains the signature of himself, the accused and the witnesses. Arrest memo and inspection memo were also prepared. They are respectively Exts.P2 and P3. Thereafter, the accused and the contraband article were taken to the police station and a crime was registered. Ext.P4 is the First Information Report. PW1 at the time of trial, identified the plastic can held by the accused at the time of detection. He was subjected to cross examination. The defence counsel put questions to establish that the accused had no connection with the contraband recovered from an open land. PW1 admitted that he was not aware as to who was the owner of the land, from where the detection was effected. PW1 deposed **Crl. Appeal No.1011 of 2003 4** that by the completion of detection, it was dark and the relevant records were prepared in the candle light. 6. PW2 was a Police Constable, who accompanied PW1. He also testified in tune with the deposition of PW1. He also stated that the accused was found possessing illicit arrack in a can and he was arrested. Drawing the sample, labelling and sealing were also spoken to by PW2. He also identified the material objects from the court at the time of trial. He stated that the entire formalities were over at about 7.00 p.m. His testimony would show that there was sufficient light to prepare the documents. Learned counsel for the appellant argued that this incongruity in his testimony in contradistinction to that of PW1 was not considered by the court below. Even if this is taken as an incongruity, it will not affect the merit of the prosecution case because detection of the offence, recovery of the contraband from the possession of the accused and preparation of material records have been amply proved by these two witnesses. PW3 **Crl. Appeal No.1011 of 2003 5** refused to support the prosecution case in its full extent. He is a signatory to Ext.P1 mahazar. However, he stated that he signed the mahazar from a bus stop. PW4 is another signatory to Ext.P5. He also stated that he was forced to sign on Ext.P5. 6. PW5 was a Head Constable at the material time. He conducted investigation and prepared Ext.P5. He produced the property as per a property list Ext.P6. Rest of the investigation and questioning the witnesses were done by the Sub Inspector of Police. PW6 is a witness to Ext.P1 mahazar. He also turned hostile to the prosecution. But, he admitted his signature on Ext.P1 mahazar. PW7 is the investigating officer. He was the Sub Inspector of Police at the material time. He verified the investigation conducted by PW5. He submitted the forwarding note for sending the contraband for chemical examination. He submitted the final report after closing the investigation. 7. Learned counsel for the appellant submitted that PW7 did not properly explain why the contraband was produced **Crl. Appeal No.1011 of 2003 6** after four days in court. It is seen that Ext.P1 seizure mahazar was produced on 13-07-1999 itself, i.e., the next working day. It is to be remembered that the incident was on 12-08-1999 at about 6.30 p.m. Therefore, it cannot be stated that there was any delay in reporting the seizure to the court. Ext.P2 arrest memo, Ext.P3 inspection memo and Ext.P4 First Information Report were also produced before the court on 13-08-1999 itself. Ext.P5 scene mahazar was produced before the court on 16-081999. The property list was seen produced on 16-08-1999. Learned counsel for the appellant contended that the property must have been in the possession of PW7 from 12-08-1999 night till 16-08-1999, on the date it was produced before the court. It is not clear as to whether the contraband was kept by PW7 in a safe condition and without any tampering. Learned Public Prosecutor submitted that the evidence of PW7 will show that he was in custody of the contraband articles till 16-08-1999. I am of the view that there is no definite evidence **Crl. Appeal No.1011 of 2003 7** adduced by the prosecution to show that the contraband was kept by PW7 in safe custody till it was produced before the court. Learned Public Prosecutor submitted that the prosecution may be given an opportunity to explain the cause of the delay in producing the contraband before the court. This court in many number of decisions have held that the seizure must be reported to the court forthwith. The dictum in _**Ravi v. State of Kerala and Another (2011(3) K.L.T 353)**_ also approves this principle. It is also settled that there must be sufficient explanation offered by the prosecution in case the contraband was not produced along with the material records. In this case, I find that there is no other illegality or irregularity, except the lack of explanation of four days delay in producing the contraband before the court. Hence, I am of the view that the request made by the learned Public Prosecutor to remand the case to the trial court for adducing appropriate evidence to explain the delay is to be allowed. Therefore, the following directions are made. **Crl. Appeal No.1011 of 2003 8** In the result, the appeal is allowed. The impugned judgment is set aside. The matter is remitted back to the trial court with a direction that the prosecution and the defence are allowed to adduce further evidence only regarding the question of delay in producing the contraband before the court. Learned Sessions Judge shall consider the matter afresh on the basis of the evidence and dispose of the case as expeditiously as possible, at any rate within a period of six months from the date of receipt of a copy of this judgment. Accused shall appear before the court below on 21[st] May, 2014. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge