Ratheesan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938** **CRL.A.No. 884 of 2009** **AGAINST THE JUDGMENT IN S.C 462/2007 of ADDL.SESSIONS JUDGE (FAST TRACK COURT-II, ALAPPUZHA DATED 01-04-2009** ## **APPELLANT/ACCUSED** **RATHEESAN, S/O.DAMODARAN, THATTARUPARAMBIL, KUTTAMANGALAM MURI, KAINAKARY VILLAGE, ALAPPUZHA.** **BY ADV.SRI.R.AZAD BABU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SHEEBA K.K** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ab** ## MARY JOSEPH, J. ---------------------------------------- Crl.Appeal No.884 of 2009 ----------------------------------------- Dated this the 17[th] day of January, 2017 ## J U D G M E N T This criminal appeal is directed against the judgment dated 01.04.2009 of the Additional Sessions Judge [Fast Track Court No.II], Alappuzha (for short 'the Court') in S.C. No.462/2007, originated from Crime No.14/2003 of Excise Range, Kuttanadu. 2. The appellant is the accused and the respondent is the complainant represented by the State of Kerala. The accused was chargesheeted by the Excise Officials for the offence punishable under Section 8(2) of the Abkari Act, (for short 'the Act'). After trial he was found guilty for the said offence, convicted and directed to undergo simple imprisonment for one year and pay fine of `1,00,000/-. In default of payment of fine he was also directed to undergo simple imprisonment for three months. Aggrieved thereby the appellant has approached this Court in the captioned appeal. Crl.Appeal No.884 of 2009 2 3. The parties to this appeal will be referred to in the proceedings on hand in accordance with their original status before the trial court as the accused and the complainant. 4. The prosecution case in brief was as follows :- The accused was found carrying 15 litres of illicit arrack in a 35 litres of can on his shoulder at 11.30 am on 06.03.2003 at the southern bund of S Block Marthandom lake in Kainakary North Village in Kuttanadu Taluk. The offence alleged was detected by the Circle Inspector, Special Squad, Alappuzha. He was accompanied by a Preventive Officer and few Excise Guards, attached to the said office in a country boat. They intercepted the accused. The Can carried by him was examined in front of the public gathered there. The liquor contained in the Can on smelling and tasting by the officials was identified as arrack. Therefore, sample was drawn from the contraband liquor in a bottle of 375 ml and the Can and the bottle containing the sample were sealed. A label with the imprint Crl.Appeal No.884 of 2009 3 of the personal seal of PW3 was affixed on it. The accused was arrested then and there. Arrest intimation was given to his brother, who was conducting a tea shop in the proximity. Arrest memo was prepared and got it signed by the accused and also by a member of the public who witnessed the activities there. Specimen seal impression NP was also affixed. Ext.P1 seizure mahazar was also prepared specifically describing all the formalities complied with by the officials at the spot of seizure. The same was made to attest by the officials a well as two among the members of the public available there. Thereafter, the accused along with the bottle containing sample drawn from the contraband liquor, the Can containing the remnant contraband liquor and Ext.P1 seizure mahazar prepared at the spot have been produced before the office of the Assistant Excise Inspector, Kuttanadu. He prepared the Crime and Occurrence report. The property list, remand report and the forwarding note were also prepared by him then and there. The accused along with Crl.Appeal No.884 of 2009 4 the property seized from the spot and the documents prepared have been forwarded to the court on 07.03.2003. The initial part of the investigation in the case was conducted by the Excise Range Inspector of Kuttanadu Excise Range followed by an officer superior to him. On obtaining the chemical analysis report, which certifies the sample forwarded as arrack, the investigation was concluded and the final report was laid before the Judicial First Class Magistrate Court, Ramankary. By proceedings initiated as C.P.No.22/2007 the case was committed by the Magistrate to the Court of Sessions, Alappuzha, wherefrom it was made over to the court below to proceed with the trial. 5. The accused entered appearance on summons being served on him. After hearing the prosecution and the defence, charge was framed against him under Section 8(2) of the Act. The charge when read over and explained to him, he pleaded not guilty and claimed to be tried. Thereafter, the accused faced trial. On the side of the Crl.Appeal No.884 of 2009 5 prosecution, seven witnesses were examined as PWs 1 to 7 and eight documents and one material object were marked respectively as Exts.P1 to P8 and MO1. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution. He denied all those circumstances put to him and stated in addition that he was not arrested from the place of occurrence but from a teashop situated in the proximity. He also denied to have any connection with the contraband. His specific case was that himself and his brother Sasidharan were conducting the tea shop situated in the neighbourhood jointly and the case was foisted against him, with the contraband recovered by the Excise Officials from the bushes situated nearby. Both the learned Public Prosecutor and the learned counsel representing the accused were heard under Section 232 Cr.P.C. Reasonable grounds having not been found for entering into a finding of acquittal of the accused at that stage, he Crl.Appeal No.884 of 2009 6 was asked to enter upon his defence. He examined a witness as DW1 to substantiate his specific plea of false implication into the case. 6. On appreciation of the entire evidence so let in by the rival parties and upon hearing the rival arguments advanced by the learned counsel for the accused and the learned Public Prosecutor, the court below arrived at a finding of guilt against the accused for the offence under Section 8(1) of the Act and thereby convicted and sentenced him under Section 8(2) of the Act by the judgment under challenge. The accused being aggrieved by the same is before us in challenge. 7. Sri.R.Azad Babu, the learned counsel appearing for the accused and Smt.Sheeba.K.K., the learned Public Prosecutor appearing for the complainant/State respectively were heard in detail. The oral and documentary evidence available on record were appreciated in the background of the rival contentions advanced. Crl.Appeal No.884 of 2009 7 8. During the course of his arguments on behalf of the accused, Sri.R.Azad Babu, the learned counsel invited my attention to two serious circumstances in the investigation process to contend that those are flaws fatal, liable to vitiate the prosecution case. 9. The first and foremost contention raised was the failure of the detecting officer (PW3 ) to take two samples from the contraband liquor seized from the spot. According to him, the Excise Manual mandates preparation of three samples from the contraband seized and the violation of the same is something material, liable to vitiate the prosecution case. To rest his contention, reliance was also placed on an unreported ruling of a single Bench of this Court. The second contention of the learned counsel was based on the unexplained inordinate delay of the officials to conclude the investigation process and to lay the final report against the accused. According to the learned counsel, Section 50 of the Act mandates an expeditious investigation in cases involving offences under the Act Crl.Appeal No.884 of 2009 8 and in a case where cogent reasons are not forthcoming from the officials to explain the inordinate delay, the trial is bad. **Krishnan.H.** v. **State** [2016 (2) KHC 822] was also cited in reliance to substantiate the same. The learned counsel has also advanced arguments on the basis of the evidence of excise officials examined as PW3 and PW4 to establish that the accused was implicated falsely into the case. 10. Smt.K.K.Sheeba, the learned Public Prosecutor submitted on the contrary that the guilt against the accused for the offence for which he was charged with, is well established from the oral and documentary evidence adduced by the prosecution and based on the infirmities pointed out by the learned counsel for the accused, the prosecution case cannot be doubted. According to her, the prosecution case which is well established in all other respects is not liable to be defeated for the reason of delay, if any is there. 11. In the backdrop of the rival contentions put forth by the Crl.Appeal No.884 of 2009 9 respective counsel as above, this Court ventured to analyze the evidence and appraise the same. As already said, seven witnesses were examined, eight documents and one material object were marked on the side of the prosecution. 12. PWs 1 and 2 are none other than independent witnesses, who according to the prosecution, were available at the spot of occurrence to witness the formalities allegedly complied with by the officials of the Excise, who conducted the seizure. PW3 was none other than the then Circle Inspector of Excise Special Squad, Alappuzha, who was the leader of the detecting team on the alleged day. PW4 was the then Preventive Officer attached to the Special Squad, Alappuzha and was one among the detecting team led by PW3. PW5 was the Assistant Excise Inspector, who received the accused, the properties seized and Ext.P1 seizure mahazar at his office. The crime and occurrence report, the property list and the remand report were prepared by him then and there and those along Crl.Appeal No.884 of 2009 10 with the property seized and Ext.P1 have been forwarded to the Court. PW6 is the Circle Inspector of Excise Range, Kuttanadu who conducted the preliminary investigation in the case by examining the witnesses and recording their statements. PW7 is the Excise Inspector, Excise Range, Kuttanadu who had completed the investigation and laid the final report before the Judicial First Class Magistrate Court, Ramankary, chargesheeting the accused for the offence under Section 8 (2) of the Act. 13. Exts.P1, P2 and P3 are the Seizure Mahazar, arrest memo and arrest notice prepared at the spot, while arresting the accused. Ext.P4 is the paper with the specimen seal affixed thereon. Ext.P5 is the Crime and Occurrence Report. Ext.P6 is the property list. Ext.P7 is the remand report and Ext.P8 is the Chemical Analysis Report prepared by the Assistant Chemical Examiner to Government of Kerala and obtained from the Chemical Examiner's Laboratory. 14. It is true that PWs 1 and 2, the independent witnesses Crl.Appeal No.884 of 2009 11 examined by the prosecution to prove the occurrence and attestation of Ext.P1, turned unloyal to the prosecution while being examined before the court. PW1 has admitted his signature in Ext.P1, but denied to have witnessed the seizure of the contraband liquor from the accused. According to him, his signature was obtained by the officials of Excise in Ext.P1 after informing him about the registration of a case against the accused under the provisions of the Act. It is contended by him that at the time when he puts his signature in Ext.P1, he saw the accused sitting in a country boat lying near to the alleged place of detection. 15. PW2 has also admitted the signature found in Ext.P1 as his own. According to him, he reached the spot after having been informed about a raid at the place and put his signature in Ext.P1 solely based on the request of the Excise Officials to do so. But, he denied to have witnessed the seizure of arrack from the accused. Crl.Appeal No.884 of 2009 12 16. PW3, an official witness, deposed in categoric terms about the search, seizure, sampling, sealing of the Can containing the remnant contraband and the bottle containing sample drawn therefrom, preparation of Ext.P1 and the arrest of the accused from the spot after duly complying with the formalities of arrest. PW4 has also deposed in precise terms and those corroborate with the versions of other witnesses examined by the prosecution. According to PW3 and PW4, each of them had put their signatures in Ext.P1 and procured signatures of PWs1 and 2 therein from the spot. Though turned unloyal to the prosecution with regard to detection, seizure and the compliance of the formalities associated therewith, the evidence tendered by PW1 and PW2 indicate presence of the accused and the Excise Officials at the place of seizure and affixure of signatures by them in Ext.P1 prepared and the labels affixed on the properties from the spot. 17. As already stated, the learned counsel for the accused had Crl.Appeal No.884 of 2009 13 also made an attempt to establish that the accused was implicated falsely into the case. He has drawn the Court's attention to the evidence of PW3 and PW4 to substantiate the same and therefore, the evidence of those witnesses is required to be dealt with in detail. The prosecution case as deposed by PW3 was that himself and his fellow men visited the place of occurrence not based on any prior information, but solely for the reason of the likelihood of people in that locality being involved in activities related to liquor during the season, being a harvest one. He has no claim that his visit at the place along with his fellow men was based on any prior information from newspapers or other reliable resources about possession by the accused of arrack. 18. It is the specific case of PW3 and PW4 that they reached at the boat jetty situated south west of the southern bund of S block Marthandam lake on 06.03.2003 in a country boat. According to them, they reached the boat jetty at 11.30 a.m. and while walking Crl.Appeal No.884 of 2009 14 towards east through the bund for about more than 100 mtrs., after stepping down from the boat, they found the accused mounting up the bund from the paddy field and proceeding towards east, carrying MO1 can having the capacity of 35 litres on his shoulder. He was intercepted and the liquor in the Can was examined. Having been convinced from the examination that the liquor in the Can was nothing but arrack, the accused was arrested. Thereafter, the formalities as required by the relevant provisions of the Act are evidenced as complied with without any failure and the crime and occurrence report was prepared against the accused. 19. According to the prosecution, the place of occurrence is ten feet west of the teashop of Sri.Sasidharan, who is none other than the brother of the accused. The arrest memo is seen signed by the accused himself on 06.03.2003. But both in the arrest memo and arrest notice marked as Exts.P2 and P3, the brother of the accused was not made to sign as a witness. The learned counsel contended Crl.Appeal No.884 of 2009 15 on the strength of the aforesaid evidence that the case of the prosecution is suspicious. 20. The learned counsel submitted in the backdrop that the prosecution has no case that the accused on watching the officials proceeding towards him, attempted to escape from the scene. On the contrary, the officials have stated that the accused was intercepted by them, then and there. It is contended by the learned counsel that the accused being on the bund, he had every possibility to see the officials proceeding towards the bund in a country boat. The shop belonging to the brother of the accused was also situated nearby. In such circumstances, as a reasonable man, he may attempt to flee or hide inside the shop. The prosecution has no case that the accused attempted to escape therefrom or hide inside the shop. Unlike a prudent man, the accused remained there so as to make the search and seizure an easy affair for the officials. In the circumstances as narrated by the prosecution, there was every Crl.Appeal No.884 of 2009 16 scope for the accused to escape from the place to avoid arrest and false implication thereafter in the case. On the contrary, as per the case of the prosecution, the accused surrendered before the Excise Officials and subjected himself to them for initiating the proceedings against him. During examination under Section 313(1)(b) of Cr.P.C. apart from denying the incriminating circumstances, the accused has also raised the specific plea of false implication into the case. According to him, the contraband liquor was found by the officials in an abandoned state in a nearby bush, recovered therefrom and implanting the same, a false case was foisted against him. Viewed contextually, the case put forth by the defence assumes some relevance. According to him, he was conducting a tea shop jointly with his brother Sasidharan near to Marthandam Lake. To establish his case, a witness was also examined as DW1, who claims acquaintance with the accused and his brother Sasidharan. According to him, the accused and his brother Sasidharan were Crl.Appeal No.884 of 2009 17 jointly conducting a teashop at the bund on the northern side of the Marthandam Lake and apart from a house situated 2 kms. east, no other house or shop is situated near to the said teashop. He went on to state that standing in the field, one could see persons travelling through the bund and the lake. Despite availability of a chance to see the officials proceeding towards him, he does not attempt to flee therefrom or hide somewhere. According to him, the accused is not a man with criminal background and the Police took himself and his brother from the shop in a country boat about three years back and implicated him falsely in the crime in question by implanting the contraband. As rightly contended by the learned counsel these circumstances create some doubt on the veracity of the prosecution case. 21. PW3 and PW4 were categoric in their version that only single sample of 200 ml. was drawn in a bottle having capacity of 375 ml. from the contraband of 15 liters contained in a Can having Crl.Appeal No.884 of 2009 18 the capacity of 35 litres. Sri.Azad Babu, the learned counsel for the petitioner urged that PW3 by drawing a single sample from the contraband has violated the directive in the Kerala Excise Manual to draw at least three samples from the contraband. According to the learned counsel, failure to draw three samples than one, is a material irregularity, liable to vitiate the prosecution case. 22. To rest the aforesaid contention, the learned counsel had drawn this Court's attention to an unreported decision of a single Bench of this Court in Crl. Appeal No.47/2006 wherein the learned Single Judge found that non-compliance of the directive in the Excise Manual, requiring the officials to take three samples from the contraband is fatal to the prosecution. Accordingly the appeal was allowed and the conviction was set aside. It is urged by the learned counsel that the dictum in the case cited supra can safely be applied to the case on hand. 23. Before adverting to the dictum cited supra, it is relevant to Crl.Appeal No.884 of 2009 19 have a look at the Kerala Excise Manual, which in paragraph 34, provides:- “Three samples of not less than (1) 130 grams weight from each distinct kind of excisable drug and (2) two litres or such smaller quantity as may be available of each kind of liquor or wash, may be taken in the presence of the Excise Inspector or Senior Most Excise Officer present and the accused.” Paragraph 34 as extracted above does not contain a direction to take three samples from the contraband as propounded by the learned single Judge in the unreported decision cited supra. On a close look at the provisions of the Act also, one could not notice any direction to the officials to draw three samples from the contraband seized. Therefore, there is no substance in the contention of the learned counsel on behalf of the accused that the prosecution case is vitiated for the reason that three samples have not been drawn from the contraband. The contention is discarded being devoid of merits. 24. PW5 has spoken in categoric terms before the court that Crl.Appeal No.884 of 2009 20 the contraband liquor, the sample drawn therefrom and the relevant documents prepared at the spot were produced before the Excise Range Office, Kuttanadu on 06.03.2003, the date on which, according to the prosecution, the offence alleged was detected and other related formalities were complied with. The version of PW5 makes it clear that the properties seized, Ext.P1 seizure mahazar prepared from the spot and the accused were received at his office without delay. It is also the case of PW5 that the Crime and Occurrence Report was prepared on the same day at 8.40 pm. Ext.P6, the property list and Ext.P7, the remand report were also prepared on the very same date. According to him, the accused along with the documents and the properties were produced before the Magistrate on 07.03.2003, the immediate succeeding day. The endorsement in Ext.P7 also indicates that the relevant documents and the accused were received by the court on 07.03.2003. Therefore, there was no delay in forwarding the accused, the Crl.Appeal No.884 of 2009 21 properties and the documents before the court. PW3 has also spoken in the box about the affixture of his personal seal on the materials seized from the spot. 25. In view of the argument advanced by the learned counsel that inordinate delay was there, for the investigation to reach it's finality, this Court has to see it's correctness. The investigation in the case was commenced by PW6, the Excise Range Inspector of Kuttanadu Range. It is evident from his version before the court that the investigation was taken over by him on 10.09.2006 and the statement of PW5 was recorded on 10.02.2007. It is also his case that other official witnesses were questioned on 14.02.2007 and 22.02.2007. He has also stated that all the relevant documents prepared by the prosecution were examined by him and handed over to the Excise Inspector of Excise Range, Kuttanadu. The investigation was concluded and the final report was also prepared and filed before the Judicial First Class Magistrate Court, Ramankary Crl.Appeal No.884 of 2009 22 on 12.06.2007. Therefore, it is exposed from, the date borne out from the final report, that there was inordinate delay in preparing and submitting the same before the Magistrate. 26. The factual situation of the case being so, it is pertinent to have a look at Section 50 of the Act, which 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). Sub-section (1) of Section 50 provides that every investigation into an offence under the Act shall be completed without unnecessary delay. Sub-section (2) also provides that as soon as the investigation process is completed, a final report shall be forwarded by the Abkari Officer to the Magistrate. The purpose intended by the Crl.Appeal No.884 of 2009 23 provision is avoidance of unnecessary delay. A reading of the provision would make it clear that the delay necessitated by justifiable reasons is permissible. To see whether the delay was occasioned necessarily, the investigating officer has to explain reasons justifiable. If the investigating officer has stated cogent reasons while attempting to explain the delay, even though inordinate, that would not affect the prosecution case materially. Despite being inordinate, the delay if remained unexplained, the same would open up sufficient space for the accused to canvass prejudice on the officials against him. 27. Undoubtedly circumstances as aforesaid would leave room to view the veracity of the prosecution case with suspicion and the accused alone is entitled to derive the benefit of that doubt. On a scrutiny of the evidence in the backdrop of the contentions and the legal provision extracted hereinabove, it is clear that the investigation was conducted by PW6 in a leisurely manner, Crl.Appeal No.884 of 2009 24 consuming much time, thereby caused the final report to be filed before the Court belatedly. The established case of the prosecution itself was that the detection and all the associated formalities relevant for the seizure under the Act were completed on 06.03.2003, the date on which the offence was detected. PW6 when examined before the court deposed categorically that he assumed the charge of the investigation in the case on 10.09.2006. Evidently, the investigation was started after about 3½ years from the date of detection of the offence. PW6 was precise in stating that the witnesses of the prosecution were examined and their statements were recorded on 10.02.2007, 14.02.2007 and 22.02.2007. Therefore, it is clear that the witnesses were questioned only after about five months of his assumption of charge of investigation. It is evident from the final report that it was prepared and submitted before the court on 12.06.2007 i.e., about 4½ years after the detection of the offence. Indisputably, there was inordinate delay to Crl.Appeal No.884 of 2009 25 complete the process of investigation and lay final report, chargesheeting the accused. Therefore, PW6 has acted in total violation of the mandate of Section 50 of the Act to complete the investigation into an offence, as expeditiously as possible. Cogent and rational explanation was not forthcoming from PW6 to establish that the delay was necessitated by valid and justifiable reasons. PW7 though examined before the court was totally silent in that respect. 28. The question now mooted for consideration is whether the inordinate unexplained delay would vitiate the case of the prosecution. In this connection, the dictum in H.Krishnan v. State of Kerala [ 2015 (1) KHC 822] : 2015 (1) KLD 421 : 2015(1) KLJ 793 : 2015 (2) KLT SN.11, cited by the learned counsel for the petitioner is relevant and could safely be drawn to the situation on hand. In H.Krishnan (supra), a Single Bench of this Court had occasion to deal with the impact of inordinate delay in investigation process and the dictum laid is extracted hereinbelow :- Crl.Appeal No.884 of 2009 26 “The alleged occurrence was on 04-11-1999. PW1 handed over the accused, contraband and the records to PW2 on that day itself. PW2 was the Excise Inspector, Excise Range Office, Hosdurg, at that time. So, he was a competent Abkari Officer to conduct investigation of this case. Why he had not conducted investigation? The prosecution has not given any explanation as to why PW2 has not conducted investigation. Thereafter, when the investigation had taken place? PW3 stated that he had taken over the investigation of this case on 30-6-2000, i.e., after a period of about 8 months. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. Here, in this case, the long delay in conducting the investigation is writ large. The prosecution has not offered any explanation for the inordinate delay in conducting the investigation. This aspect of the matter also cannot be brushed aside.” 29. The irresistible conclusion that could possibly be drawn from the discussion hereinabove made was that the inordinate unexplained delay is crucial and liable to shake the very foundation of the prosecution case, even if it is otherwise established. In the case on hand, by prolonging the process of investigation unduly and Crl.Appeal No.884 of 2009 27 by failing to explain the same with reasons, the prosecution has not only failed to discharge the statutory duty but also infringed the constitutional guarantee of fair trial to the accused. 30. In view of the points discussed hereinabove, there is every reason to view the case of the prosecution with suspicion. For the legal flaw as narrated hereinabove also, the case of the prosecution is liable to be defeated and the accused indisputably has to be given the benefit flowing therefrom. The impugned judgment is liable to be set aside, for the reasons aforesaid. In the result, the Crl.Appeal succeeds and is allowed. The impugned judgment of the court below is set aside. The bail bond of the accused is cancelled and he is set at liberty. Sd/- MARY JOSEPH, JUDGE //True Copy// P.A to Judge vs