Ratheesh, S/o Gopalapilla v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **CRL.A.No.2157 OF 2005** **AGAINST THE JUDGMENT IN SC NO.69/2005 DATED 24-11-2005 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **AGAINST THE JUDGMENT IN CP NO.44/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THODUPUZHA** ## **APPELLANT/3RD ACCUSED:** **RATHEESH, S/O.GOPALAPILLA, VAZHAYIL VEETTIL, MULLARINGADU KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK.** **BY ADV. SRI.C.M.TOMY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL No.2157 of 2005 2 ## **JUDGMENT** ## **Dated this the 14th day of July 2020** ... The above appeal is filed by the 3[rd] accused in Sessions Case No.69 of 2005 on the file of the Additional Sessions Court (Adhoc)-II, Thodupuzha. 2. The appellant and two others were charge sheeted by the Sub Inspector of Police, Kaliyar alleging offences punishable under Sections 8 (1), 8(2) and 55(g) of the Abkari Act. 3. The prosecution case is that, on 21.12.2002 at 11.30 p.m., in the kitchen of the house belonging to CW6 at Pannimattamchal in Vannappuram Panchayat, accused Nos. 1 to 3 were found possessing 2 ½ litre of arrack, 20 litres of wash for the preparation of arrack and also utensils for distillation of arrack. Accused 1 and 2 were arrested from the spot. Accused No.3 ran away from the place. CRL.APPEAL No.2157 of 2005 3 4. All the three accused appeared before the lower court and the trial court framed charge under Sections 8(1), 8(2) and 55(g) of the Abkari Act. 5. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P9 were marked on the side of the prosecution. MO1 to MO10 are the material objects. 6. After going through the evidence and the documents, the trial court found that, accused Nos.1 to 3 are guilty under Sections 8 (2) and 55(g) of the Abkari Act. For the offence under Section 8(2) of the Abkari Act, accused No.1 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for three months. Accused Nos.2 and three were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each. For the offence under Section 55(g) of the Abkari Act, accused No.1 was sentenced CRL.APPEAL No.2157 of 2005 4 to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for three months. Accused Nos.2 and three were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for six months each. Aggrieved by the conviction and sentence, accused Nos.1 and 2 filed this appeal. Aggrieved by the conviction and sentence, the 3[rd] accused filed this appeal. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant submitted that, there is unexplained long delay in producing the contraband articles before the court and that itself is sufficient to give benefit of doubt to the appellant. 9. The learned Public Prosecutor submitted that, there are oral and documentary evidences to CRL.APPEAL No.2157 of 2005 5 prove the offences alleged against the appellant. 10. The point for consideration in this case is whether the 3[rd] accused committed the offence under Section 8(2) and 55(g) of the Abkari Act. 11. The 1[st] and 2[nd] accused filed Criminal Appeal No **.** 2178 of 2005 before this Court challenging their conviction and sentence. This Court as per the judgment dated 01.07.2020, allowed Criminal Appeal No.2178 of 2005 and was pleased to set aside their conviction and sentence. The relevant portions of the judgment are extracted hereunder: “10. Admittedly, the seizure of the contraband articles in this case was on 21.12.2002. The contraband articles were produced before the Court only on 18.1.2003. The trial court found that even though there is delay in producing the articles before the Court, no prejudice is caused to the accused. But, admittedly there is no explanation for the delay. The relevant portion of the judgment of the trial court is extracted herein below : _13. The properties seized from the spot on 21.12.2002 were produced before Court on 18.1.03. There is some delay in the production of thondy articles before Court._ CRL.APPEAL No.2157 of 2005 6 _Only Mos 9 and 10 contained samples of arrack and wash. The other material objects produced are the utensils for the distillation of arrack balance arrack after taking sample and also a mug, a glass and kerosene lamp. It is not shown that any prejudice was caused to the accused by the delayed production of the material objects before Court. Accused 1 and 2 were produced before Court on the very next day itself with the allegation that they were arrested when PW5 found them engaged in the process of distillation of arrack. Accused Nos.1 and 2 did not make any complaint when produced before the Magistrate that they were arrested by PW5 without any reason. Even after they were released on bail they did not make any complaint against PW5. PW5 has stated before Court that the material objects seized from the spot were in his safe custody till it were produced before Court. In the absence of proof regarding any prejudice caused to the accused by the delayed production of material objects it cannot be found that the delayed production of material objects is fatal to the prosecution. Sample of arrack and wash produced before Court were sent for chemical examination. Ext.P9 is the report of chemical examination which states that the samples sent for analysis contained 47.66 percent and 10.12 percent by volume of ethyl alcohol respectively. Hence the fact that arrack was contained in MO4 can and wash_ CRL.APPEAL No.2157 of 2005 7 _was contained in MO5 can is proved by Ext.P9. The process witnessed by PW5 in the kitchen of the house in PW4 was distillation of arrack and hence even though it is not specifically stated in Ext.P9 that sample S3 contained arrack it can be found that MO4 contained arrack and nothing else.”_ 11. I cannot agree with the findings of the trial court. If there is no explanation for the delay in producing the contraband articles before the Court, this Court repeatedly observed that the accused is entitled the benefit of doubt. When the statute mandates that the property seized should be produced before the Court forthwith, it can't be diluted by saying that there is no prejudice. 12. The seizure of the contraband, in this case, was on 27.6.2002. The sample reached the Court only on 8.7.2003. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the Court. This Court considers this point in Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822). Relevant paragraphs of the judgment in Ravi's case (supra) are extracted hereunder: _8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector,_ CRL.APPEAL No.2157 of 2005 8 _Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note._ 13. In the light of the above discussion, I think, the second accused is entitled the benefit of doubt. The first accused is no more. His legal heirs or near relatives have not come up to pursue this appeal. Since I am allowing the appeal of the second appellant on a fundamental issue affecting the entire prosecution case, I think that benefit should be given to the first accused also because the lower Court imposed a fine of Rs.1,00,000/- in CRL.APPEAL No.2157 of 2005 9 this case. When there is delay in producing the articles before the Court and when there is no explanation for the same, it will go to the root of the case.” 12. The same principle is applicable to the appellant/3[rd] accused also. In the light of the above specific findings as far as 1[st] and 2[nd] accused are concerned, the appellant/3[rd] accused is also entitled the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/3rd accused as per the judgment dated 24.11.2005 in S.C. No.69 of 2005 by the Additional Sessions Court (Adhoc)-II, Thodupuzha are set aside. The appellant/3rd accused is set at liberty. Bail bond, if any, executed by the appellant/3rd accused is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**