SASI v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: BABU MATHEW P. JOSEPH
Judgment Date: 2014-06-03
Court Decision / Holding: The conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by him shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required. This appeal is disposed of as above.
Final Disposition: Appeal disposed of

Parties to the Case

Appellants / Petitioners

SASI, S/O. KUTTAPPAN, CHARUVILA PUTHEN VEEDU, VELLACHAL, URUKUNNU MURI THENMALA VILLAGE

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. D. Jayachandran

Counsels for Respondents

• Public Prosecutor Sri C.K. Jayakumar

Case Synopsis & Summary

The appellant was convicted by the Additional Sessions Court (Abkari), Kottarakkara, under Section 55(a) of the Abkari Act for possession of contraband liquor with intent to sell. He was sentenced to two years’ imprisonment and a fine of one lakh, with a default sentence. On appeal, the appellant died on 12 April 2010, after filing the appeal, and no leave to continue the appeal had been sought by his relatives. The prosecution led evidence through PW3, who testified that on 7 January 2000 he stopped the appellant near his house in Thenmala, found about 5 litres of arrack in a 10-litre jerrycan, and seized 180 ml samples in two bottles. The contraband and the samples were produced before the Magistrate on 7 January 2000, but the property reached the court only on 20 January 2000. The trial court’s conviction rested on PW1–PW3; however, the chain of custody and the unexplained delay in production undermined the evidence. Relying on Ravi, Ramankutty and Narayani, the Court held that there was no satisfactory explanation for the delay and that the accused was entitled to the benefit of doubt. Consequently, the conviction and sentence were set aside; the bail bond was cancelled; and since the appellant had died, the matter was disposed of.

Provisions of Law Cited

Section 55(a) of the Abkari ActSection 55(i) of the Abkari Act

Legal Doctrines & Maxims

Duty to explain delay in production of contraband / property
Chain of custody of contraband
Benefit of doubt in criminal cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel points to the procedural facts surrounding the death of the appellant during the pendency of the appeal and the lack of leave to continue by his relatives; he also challenges the sufficiency of the evidence and the delayed production of the contraband, arguing that the chain of custody and unexplained delay undermine the conviction under Section 55(a).

Contentions of Respondents

The State argues that the contraband was seized from the appellant, samples were taken, and the prosecution established possession with intent to sell; it contends the delay in production requires a satisfactory explanation and that the evidence supports the conviction under Section 55(a).

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ravi v. State of Kerala	2011 (3) KLT 353	Positive	Cited to establish the principle that a delay in production of property requires an explanation; used to find delay fatal where not explained.
Ramankutty v. Excise Inspector	2013 (3) KHC 308	Positive	Held that even a small unexplained delay can be fatal to the prosecution; used to underscore the need for explanation of delay.
Narayani v. Excise Inspector	2002 (3) KLT 725	Positive	Found that absence of evidence of custody/possession weakens the case and supports benefit of doubt in favor of the accused.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936 CRL.A.No. 1740 of 2005 (F) ------------------------------AGAINST THE JUDGMENT IN SC 805/2000 of ADDL. SESSIONS COURT (ABKARI), KOTTARAKKARA DATED 06-09-2005 --------- APPELLANT/ACCUSED: ------------------------- SASI, S/O. KUTTAPPAN, CHARUVILA PUTHEN VEEDU, VELLACHAL, URUKUNNU MURI THENMALA VILLAGE. BY ADV. SRI.D.JAYACHANDRAN RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1740 of 2005 -----------------------------------------------Dated this the 3[rd] day of June, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Abkari), Kottarakkara, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for two years and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant submits that the appellant expired after filing this appeal. The memo filed by the learned Public Prosecutor along with the report of the concerned Sub Inspector of Police and the copy of the Death Certificate confirmed the death of the appellant on 12-04-2010. 3. The near relatives of the appellant did not file any Crl. Appeal No.1740 of 2005 -2- application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Thenmala, and his party were on patrol at Urukunnu in Themala Village at 6.15 a.m. on 07-01-2000. While so, based on some reliable information, the police party went to Vellachal in Thenmala Village and then the appellant was seen near his house carrying a black 10 litre jerrycan. Seeing the police party, the appellant attempted to flee away. But, the police party stopped him there. On examination, it was found that the jerrycan contained about 5 litres of arrack. Since the appellant was carrying that arrack for the purpose of sale, he was arrested by PW3 at 6.30 a.m. on that day. Ext.P2 is the Custody Memo. PW3 has collected samples of 180 ml. each in two bottles from the bulk and sealed them and Crl. Appeal No.1740 of 2005 -3- seized the jerrycan containing arrack and the samples under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 proceeded to Thenmala Police Station along with the appellant, contraband articles and the records. PW3 has registered Crime No.10 of 2000 of that Police Station against the appellant incorporating the offences under Section 55(a) and (i) of the Abkari Act. The appellant along with the properties and records was produced before the Magistrate on 07-01-2000 itself. PW3 completed the investigation and submitted Final Report before the Judicial First Class Magistrate's Court-I, Punalur, alleging the offences under Section 55(a) and (i) of the Abkari Act against the appellant. 5. The learned Magistrate, after complying with the legal formalities, committed the case to the Court of Session, Kollam, and, from there, it was made over to the Assistant Sessions Court, Kottarakkara. That court framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant denied Crl. Appeal No.1740 of 2005 -4- the charge. Thereafter, the case was transferred to the Additional Sessions Court (Abkari), Kottarakkara. 6. The prosecution has examined PWs.1 to 3 and marked Exts.P1 to P5 and M.O.1 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has examined DW1. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder and, after hearing him on the question of sentence, imposed the sentence on him. He was not found guilty of the offence under Section 55(i) of the Abkari Act. 7. The appellant has raised many contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the contraband in this case was seized by PW3 at 6.30 a.m. on 07-01-2000 and produced the same before the Magistrate on that day itself. PW3 stated before the court that it was so produced. Ext.P4 is the List of Property. Along with this document, the Crl. Appeal No.1740 of 2005 -5- properties were produced before the court. It can be seen from Ext.P4 that those properties reached the court only on 20-01-2000. The learned Magistrate directed the office of the Court on 20-01-2000 to verify and receive the properties. A submission is seen made on the reverse side of Ext.P4 by the office of the court on 20-01-2000 in which it was submitted that except the sample, other item may be entrusted to the Station House Officer, Thenmala, for keeping it until further orders. Below that submission, on 20-01-2000 itself, the learned Magistrate noted 'yes' granting the submission. Therefore, the jerrycan containing the residue of the arrack after taking the samples was entrusted to the Station House Officer for him to keep it until further orders of the court. The endorsements as well as the submission made on Ext.P4 would go to show that the properties allegedly seized by PW3 reached the court only on 20-01-2000. 8. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be Crl. Appeal No.1740 of 2005 -6- explanation for the delay when there is delayed production of the property. A learned Single Judge of this Court in ## **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In this case PW3 made an attempt for explaining the delay by saying before the court that he had produced the material object on 07-01-2000 itself. But, such a statement is belied by the endorsements appearing on Ext.P4. Therefore, in this case, there is absolutely no satisfactory explanation for the inordinate delay in reaching the contraband before the court. This is, in the circumstances, fatal to the prosecution. 9. Where the contraband articles were kept after they were allegedly seized on 07-01-2000 till they were produced before the court on 20-01-2000 ? Under whose custody they were kept during that period ? No satisfactory answers were forthcoming from the Investigating Officer viz., PW3. PW3 himself admitted that he was unaware of the person with whom the material objects were sent to the court. The Crl. Appeal No.1740 of 2005 -7- prosecution has a duty to explain under whose custody and where the properties were kept before they were produced before the court. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Single Judge of this Court observed as follows: “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13-09-1998 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand, PW3 had no case that the contraband was with him during that period. Therefore, following the decision in **Narayani (supra)** , the appellant in this case is also entitled to the benefit of doubt. Moreover, in this case, two independent witnesses were cited for proving the seizure of contraband from the appellant. But, only one witness (PW1) was Crl. Appeal No.1740 of 2005 -8- examined. He did not support the prosecution case. When considering all these facts and circumstances, it is unsafe to rely on the evidence of PWs.2 and 3 and find guilty of the appellant of the offence under Section 55(a) of the Abkari Act. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by him shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required. This appeal is disposed of as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks & kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.1740 of 2005 -9-