Sathyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **CRL.A.No.2822 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1140/2006 DATED 3.11.2008 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC)II, KOZHIKODE** ## **APPELLANT/ACCUSED:** **SATHYAN, S/O.DEVADASAN KUNIYANMADAM VEETTIL, KANNIPARAMBA AMSOM, MAVOOR DESOM, KOZHIKODE.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT.M.N.MAYA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.8.2019, THE COURT ON 05.09.2019 PASSED THE FOLLOWING:** Crl.A2822/2008 2 J U D G M E N T [Crl.Appeal No.2822/2008] ## Dated this the 5[th] day of September, 2019 The appellant is the accused in SC No.1140/2006 on the file of the Addl. Sessions Court (Adhoc-II), Kozhikkode, who was found guilty of having committed an offence punishable under Section 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- with a default sentence of 6 months rigorous imprisonment. 2. The prosecution case in brief is thus: PW1 was the Excise Inspector attached to Kunnamangalam Excise Range. He along with PW2, another Excise Inspector of the same Range, were on patrol duty at about 6 p.m. on 1.10.2003. They found the accused carrying a five litre jerrycan in his autorickshaw bearing Regn. No. KL-11/M-5507 through the MLA road towards Velliparamba in Mayanad desom in Chelavur amsom in Kozhikkode Taluk. They apprehended the accused in the presence of PW3, an independent witness. They were convinced that the can contained arrack. Sample was Crl.A2822/2008 3 drawn in an 180 ml. bottle, sealed and labelled. Ext.P1 mahazar was prepared and the accused arrested as per Ext.P2 arrest memo. They brought the accused in the Excise Office along with the contraband and Ext.P3 crime and occurrence report was prepared. The accused along with the contraband was produced before the jurisdictional Magistrate on the next day and the Magistrate directed production of the contraband before the court on the next working day, consequent to which it was produced before the Magistrate's Court on 3.10.2003. The investigation however took some time. PW4, the Excise Inspector attached to the Excise Office, submitted the final report only on 17.4.2006. On the basis of Ext.P4 forwarding note, the sample was sent for analysis to the chemical examiner and Ext.P5 report was obtained stating that the sample contained ethyl alcohol. During the investigation, a copy of the registration particulars of the autorickshaw used for transporting the liquor was obtained and produced as Ext.P6 and a sketch pertaining to the scene of occurrence is produced as Ext.P7. 3. Though PW3, the independent witness, turned hostile, the learned Sessions Judge relying on the testimonies of PWs 1 and 2 found the accused guilty Crl.A2822/2008 4 and convicted him as stated above. 4. The learned counsel appearing for the appellant contends that there is unexplained delay in producing the contraband articles before the court as also delay in submitting the final report after completion of the investigation. 5. I do not find any unreasonable delay in producing the contraband before the court because the endorsement of the Magistrate itself indicates that the contraband was produced on the next day and was directed to be produced before the Court on the next working day. The contraband was thus produced before the court on the 3[rd] of October 2003 and there occurred no delay. 6. Regarding delay in submitting the final report, it is seen that the detection was on 1.10.2003 and the final report is seen filed only on 17.4.2006. PW4, the investigating officer, who submitted the final report has not given any explanation whatsoever regarding the unreasonable and long delay in conducting the investigation. The learned counsel for the appellant relies on the decision in Krishnan H v. State [2015 (1) KHC 822] to argue for the proposition that in view of the mandate in Section 50 of the Abkari Act, Crl.A2822/2008 5 which states that the investigation into the offence shall be conducted and completed without unnecessary delay, the long delay in conducting the investigation which is writ large in that case and not explained by the investigating agency cannot be brushed aside and the benefit of this inordinate delay in conducting the investigation is fatal to the prosecution. During the examination of PW4, no explanation is sought by the defence counsel regarding the reasons for the delay in submitting the final report. PW4 has stated that it was his predecessor in office who conducted the initial investigation and thereafter he continued with the investigation and submitted the final report. What is done during the investigation by PW4 is only collecting the sketch of the property prepared by the village officer and also production of a copy of the registration certificate pertaining to the autorickshaw used for transporting the illicit liquor. 7. The decision of Krishnan H (supra) relied upon by the learned counsel appearing for the appellant had been held to be per incurium by this Court in Santhosh T.A. and another v. State of Kerala [2017 (5) KHC 107] wherein a number of decisions of the Crl.A2822/2008 6 ## Honourable Supreme Court have been relied on while holding thus. “33. Right to speedy trial is an inalienable right guaranteed by Art.21 of the Constitution. This right encompasses all the stages of the case including the stage of investigation (Hussainara Khatoon v. State of Bihar, 1980 KHC 535 : 1980 (1) SCC 81 : 1980 SCC (Cri) 23 : AIR 1979 SC 1360 : 1979 CriLJ 1036 : 1980 MLJ (Cri) 76 and Abdul Rehman Antulay v. R. S. Nayak and others, 1992 KHC 749 : AIR 1992 SC 1701 : 1992 (1) SCC 225 : 1992 SCC (Cri) 93 : 1992 CriLJ 2717 : 1992 (1) Crimes 193. Again in Vakil Prasad Singh v. State of Bihar, 2009 (1) KHC 783 : 2009 (3) SCC 355 : 2009 (1) KLD 307 : 2009 (2) SCALE 22 : AIR 2009 SC 1822 : 2009 CriLJ 1731 : 2009 (2) SCC (Cri) 95 the Apex Court has observed: "The right is applicable not only to the actual proceedings in Court but also includes within its sweep the preceding police investigation as well". At the same time, in Japani Sahoo v. Chandrasekhar Mohanty, 2007 (3) KHC 333 : 2007 (7) SCC 394 : 2007 (2) KLD 3 : 2007 (3) KLT 760 : JT 2007 (9) SC 471 : AIR 2007 SC 2762 : 2007 CriLJ 4068 : 2007 (3) SCC (Cri) 388 the Apex Court held: ".........a Court of law has no power to throw away prosecution solely on the ground of delay". This was followed in Sajjan Kumar v. Central Bureau of Investigation, 2010 KHC 4691 : 2010 (9) SCC 368 : 2010 (2) KLD 603 : 2010 (10) SCALE 22 : 2010 (95) AIC 115 : 2010 (3) SCC (Cri) 1397. 34. In Ranbir and Others v. State of Punjab, 1973 KHC 590 : 1973 (2) SCC 444 : 1973 SCC (Cri) 858 : AIR 1973 SC 1409 : 1973 CriLJ 1120 the Supreme Court held: "The delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case". This has been reiterated by the Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra, 1978 KHC 637 : AIR 1979 SC 135 : 1978 (4) SCC 371 : 1979 SCC (Cri) 1 : 1979 CriLJ 51 in the following words: "Delay may not, by itself, amount to serious infirmity in the prosecution case. But it may assume 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". It added: If the circumstances of the case lead to "the conclusion that the prosecution story was conceived and constructed after a good deal of Crl.A2822/2008 7 deliberation and delay in a shady setting, highly redolent of doubt and suspicion", it is fatal. The same view has been taken by the Supreme Court in Banti @ Guddu v. State of Madhya Pradesh, 2004 KHC 372 : 2004 (1) SCC 414 : AIR 2004 SC 261 : 2004 SCC (Cri) 294 : 2004 CriLJ 372 and Surajit Sarkar v. State of West Bengal, 2012 KHC 4708 : 2013 (2) SCC 146 : 2013 (1) KHC SN 10 : 2013 (1) KLD 72 : 2012 (11) SCALE 496 : 2013 (1) KLT SN 9 : 2013 CriLJ 1137 : AIR 2013 SC 807 : 2013 (2) SCC (Cri) 877 : 2013 (115) Cut LT 1120 : 2013 (122) AIC 174. 35. For the Court to take notice of the delay in recording statements of 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 (see the decisions of the Supreme Court in the cases of Ranbir (supra) and Banti (supra). 36. The observation in the cases of Krishnan H. and Ashokan (supra) that mere delay in completing the investigation is fatal to the prosecution is not in conformity with the Supreme Court decisions referred to above.” The observation in Krishnan H (supra) that mere delay in completing the investigation is fatal to the prosecution is not in conformity with the decisions of the Honorable Supreme Court as referred to above. In the result, there are absolutely no acceptable grounds for upsetting the impugned judgment and hence cannot be interfered with. 8. The learned counsel for the appellant also points out that there is a correction in Ext.P1 mahazar wherein the quantity of the sample drawn from the contraband liquor was initially stated as 375 ml and then corrected it as 180 ml which leads to some doubts regarding the genuineness regarding the sample that was Crl.A2822/2008 8 sent for analysis. It is true that there is a correction or overwriting in Ext.P1 mahazar regarding the quantity of the sample taken and it appears that initially it was written as 375 ml and then corrected as 180 ml without any initials being subscribed to the interpolation. But, that cannot be given much importance because the crime and occurrence report marked as Ext.P3 registered on the very same day of detection states that the sample was collected in 180 ml bottle. The specimen of the seal that was affixed on the sample is seen impressed on Ext.P1 mahazar as also in the forwarding note marked as Ext.P4. The Chemical Examiner's report marked as Ext.P5 states that the seal on the sample bottle was intact and found tallied with the sample seal provided. Hence there is absolutely no doubt regarding the sample drawn from the contraband seized from the possession of the accused being sent for chemical examination. The argument of the learned counsel for the appellant on that count is therefore not sustainable. The appeal is unsustainable. In the result, the criminal appeal is dismissed. The accused is directed to appear before the trial court to undergo sentence within a period of Crl.A2822/2008 9 one month, failing which the court below is at liberty to proceed with in accordance with law. **Sd/-** **ASHOK MENON JUDGE** jg