Sathyan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935 CRL.A.No. 30 of 2008 (C) ------------------------AGAINST THE JUDGMENT IN SC 50/2006 of ADDL.SESSIONS COURT, FAST TRACKCOURT-II, ALAPPUZHA DATED 5.12.2007 APPELLANT/ACCUSED:: ------------------------- SATHYAN, S/O.RAGHAVAN, PUTHEN VEEDU, EVOOR VADAKKUM MURI, CHEPPAD VILLAGE. BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. -----------------------Crl.Appeal No.30 Of 2008 ---------------------Dated this the 23[rd] day of September, 2013.** ## **J U D G M E N T** The appellant is the accused in S.C.No.50/2006 on the file of the Additional Sessions Judge Fast Track Court-II, Alappuzha. The accused stands charge sheeted for the offence punishable under Sections 8(1), 8(2), 55(a) and 55(i) of the Kerala Abkari Act. The court below held that the accused is guilty of the offence under section 55(a) and 55(i) of the Kerala Abkari Act and is convicted thereunder. The accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of ` 1 Lakh and in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Sections 8(1) & 8(2) of the Kerala Abkari Act. Parties hereinafter are referred to as arrayed in the sessions case. 2. Prosecution case is that on 9.7.2004 at 5:50 pm the accused was found keeping 7 litres of arrack for the purpose of sale in two cannases each having a capacity of 5 litres in the firewood shed near his house. **::2::** ## **Clr.A.No.30 Of 2008** 2. To prove the case against the accused, prosecution examined PWs 1 to 5, marked Exts.P1 to P7 and MOs 1 & 2. When examined under Section 313, the accused denied the entire allegations levelled against him and further stated that he was taken into custody by two police constables at 9 o' clock in the night while he was standing in Panichimood junction. 3. PW4 is the detecting officer. PWs 1 & 3 turned hostile to the prosecution. PW2 is the constable who has accompanied PW4. PW5 is the officer who laid the charge. PW4 deposed that while he was on patrolling duty along with his party, got information that the accused was keeping arrack in the firewood shed on the western side of his house for the purpose of sale. He deposed that when he reached the place of occurrence, he saw the accused coming out of of firewood shed and attempted to ran away towards western side. PW4 intercepted the accused and seized the cannases and it was found containing some liquid. He has collected samples from the arrack from the cannases and sealed the same and affixed label containing signature of the witnesses and himself. He also conducted search in the firewood **::3::** ## **Clr.A.No.30 Of 2008** shed and another cannas having capacity of 5 litres was also seized from there. He has collected the sample from that cannas also and seized the same. The accused was arrested on the spot. PW4 prepared occurrence report, mahazar and thodi articles were taken to the police station and registered the case. PW4 further testified that he has produced the thondi articles before the court on 13.7.2002 as he was engaged in other urgent duties. He also deposed that he was keeping the thondi articles and samples in his safe custody till it was produced before the court. He has proved that mahazar, arrest memo, inspection memo, office copy of the notice, FIR and thondi list were prepared by him as Exts.P1 to P6 and identified the two cannases marked as MOs 1 & 2. PW2, head constable, who accompanied PW4 corroborated the evidence of PW2 regarding the arrest of the accused and seizure of MOs 1 & 2 in material particulars. He also identified MOs 1 & 2. 4. PW1 is an independent witness to the occurrence. He deposed that he had not seen the occurrence and that his signature was obtained at the time when he was taken to the **::4::** ## **Clr.A.No.30 Of 2008** police station by a person namely, Surendran. He also denied the signature in the mahazar. PW3 is another independent witness. He deposed that he had not seen the occurrence. He was declared hostile to the prosecution. PW5 is the Sub Inspector of Police who has verified the records and laid charge against the accused. He has proved chemical analysis report marked as Ext.P7. 5. The court below relied on the evidence of PW2 & 4. The learned judge observed that the evidence tendered by PW4 regarding seizure of MOs 1 & 2 from the possession of accused and his arrest from the place of occurrence is corroborated by the evidence tendered by PW2. It is also observed that though PWs 2 & 4 were subjected to soarching in cross-examination, no material has been brought out to discredit the evidence against the accused. The court below also found that the evidence tendered by PWs 2 & 4 is corroborated to Ext.P1 seizure mahazar which is a contemporary document prepared by PW4 at the time of occurrence. **::5::** ## **Clr.A.No.30 Of 2008** 6. The accused was arrested on 9.7.2004. He was produced before the court at 3:00 p.m on 10.7.2004. The accused and the records were produced before the court on the following day. The articles and samples involved in the case were produced by PW4 only on 13.7.2004 and till then he has kept the same in his custody. According to PW4, he was on other duty for the period from 9.7.2004 to 13.7.2004 to explain the delay in producing the thondi articles sand samples before the court. The contention raised by the defence side that the delay caused in producing the thondi articles before the court by the detecting officer cast doubt on the authenticity of the samples produced and that there was every possibility of tampering with articles in policy custody was repelled by the court. The court accepted the version of PW4 that he was keeping MOs 1 & 2 and the samples collected from the contraband under safe custody till it was produced before the court. Learned Judge observed that there was absolutely no material to show that whether the contraband and the samples involved in the case were not kept under the safe custody of PW4. The court found that prosecution has **::6::** ## **Clr.A.No.30 Of 2008** succeeded in proving beyond reasonable doubt that the accused has committed the offence under Section 8(1) & (2) of the Kerala Abkari Act and that it has failed to prove that he has committed the offence as alleged against him under section 55(a) and (i) of the Kerala Abkari Act. 7. The date of occurrence was on 9.7.2004. The contraband articles and the samples involved in the case were produced by PW4 before the court only on 13.7.2004. Till then he was keeping the same in his custody. There is a delay of six days in producing the contraband articles and samples before the court. The only reason stated is that he was on other duty. That is not an explanation for not producing the articles and samples on the date of seizure or on the following day. the chemical analyst received the samples on 10.8.2004. Ext.P7 report prepared by the Chemical Examiner is dated 19.11.2004. The final report was submitted only on 9.6.2005. There was a delay of more than six months in submitting the final report. The forwarding note was not marked by the court below. **::7::** ## **Clr.A.No.30 Of 2008** 8. Regarding the delay in producing the property a Division Bench of this Court in _**Ravi v. State of Kerala**_ (2011 (3) KLT 353) held that “ _there is no statutory mandate under the provision to “forthwith” produce the properties before the Court_ ”. Delayed production before court of the seized property is likely to be frowned upon by Courts because of the possible misuse or tampering with of such property while in the custody of the officer concerned. Thus the Division Bench has concluded that production of the property before the court without unreasonable delay is also a necessary requirement of law and that the delay in producing the property before the court by itself, cannot be fatal to the prosecution if the delay can be satisfactorily explained. Division Bench held that there should be explanation for the delay when there is delayed production of property. The Division Bench decision was followed by the learned Single Judge in the decision reported in _**Appukkuttan v. State of Kerala**_ (2013 KHC 2783). In this case, the only reason stated for the delay was that the detecting officer was on other duty. That is not a satisfactory explanation. **::8::** ## **Clr.A.No.30 Of 2008** ## 9. This Court in the decision reported in _**Rajan v. State of Kerala**_ (2013 (3) KLT 654) held as follows: _“It is not necessary that the articles seized under Section 34 of the Abkari Act should be produced before the Magistrate court “forthwith”, whereas, it would be sufficient if the records relating to the seizure were produced “forthwith” before the learned Magistrate. Wherever it is practicable, the contraband should also be produced along with the records itself and in case of delay in the production of the contraband, there should be explanation for the delay”._ Admittedly, in this case, the contraband items were not produced along with records relating to the seizure before the Magistrate. The contraband was produced after a delay of four days. No reasons are stated nor any explanation offered for the belated production of the contraband. The belated production of contraband vitiates the prosecution case. 10. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without unnecessary delay. In this case the occurrence was on 9.7.2004. Chemical examiner submitted report on 19.11.2004. The final report should have been submitted before the court **::9::** ## **Clr.A.No.30 Of 2008** immediately thereafter. It is seen that the final report was submitted only on 9.6.2005 i.e., after a period of more than six months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. It is not known for what purpose the records were kept in the police station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentenced passed by the court below in the proved circumstances cannot be sustained. In the result, the appeal is allowed. The judgment passed by the court below is set aside. Accordingly, the appellant is acquitted of the offence under Sections 8(1), 8(2), 55(a) and 55 (i) of the Kerala Abkari Act. The bail bond, if any, executed by the appellant is cancelled and the appellant is set at liberty. **HARUN-UL-RASHID, Judge.** bkn/-