Shajan, S/o Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **CRL.A NO. 1163 OF 2008** **AGAINST THE JUDGMENT IN SC 605/2006 OF ADDITIONAL DISTRICT** **COURT (ADHOC), THODUPUZHA, IDUKKI** **APPELLANT/ACCUSED:** **SHAIJAN, S/O. RAJAN, CHAVATTUKUZHIYIL HOUSE, PARISAKKALLU KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI** **BY ADV SRI.UNNIKRISHNAN.V.ALAPATT** **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** : Crl.No.1163 of 2008 2 ## **K.BABU, J.** **===================== Crl.A.No.1163 of 2008 =====================** Dated this the 29[th ] of June, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 22.5.2008, passed by the III Additional Sessions Judge (Adhoc-1), Thodupuzha, in Sessions Case No.605/2006, the accused has preferred this appeal. The trial court convicted the appellant for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act. 2. The prosecution case is that on 9.12.2005 at 9.30 am., the accused was found in possession of 1.5 litres of arrack and 2.8 litres of wash in the courtyard of his residence by name Chavattukuzhiyil at Perisakkallu in Mannamkandam Village. He was arrested by the Excise Circle Inspector, Munnar. The Excise team seized 1.5 litres of arrack and 2.8 litres of wash from the possession of the accused. 3. After completion of investigation, final report was submitted against the accused by the Excise Inspector, Adimaly for offences punishable under Sections 55(g) and 8(2) of the Crl.No.1163 of 2008 3 Abkari Act before the Judicial First Class Magistrate Court, Adimaly. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the III Additional Sessions Court (Adhoc-I), Thodupuzha. On appearance of the accused, charges were framed against him for offences punishable under Sections 55(g) and 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P10 and MOs1 to 3. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court after hearing arguments addressed from both sides convicted the accused and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- Crl.No.1163 of 2008 4 under Section 8(2) of the Abkari Act. No separate sentence was awarded for the offence under Section 55(g) of the Abkari Act. 6. Heard Sri.Unnikrishnan V. Alapatt, the learned counsel for the appellant and Sri.M.S.Breez, the learned Senior Public Prosecutor. 7. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment: i) There is inordinate delay in the production of the articles, allegedly seized from the accused, before the court. ii) The prosecution failed to establish that the contraband allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's Laboratory. iii) There is inordinate delay in completing the investigation. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. The only point that arises for consideration is Crl.No.1163 of 2008 5 whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 10. PW1, the Excise Circle Inspector, Munnar and PW2, the Excise Range Inspector, Idukki were on joint raid on 9.12.2005 for detection of contraband items at Perisakkallu. They found the accused in possession of a plastic bottle containing 1½ litres of illicit arrack. He was arrested by PW1 and was taken to his nearby residence from where 30 litres of wash was also recovered. PW1 prepared Ext.P1 seizure mahazar and Ext.P2 search list. He collected 200 ml of illicit arrack in a bottle as sample and sealed. He also collected 500 ml of wash in another bottle and the same was also sealed. PW1 produced the accused along with the contraband articles before the Excise Inspector, Adimaly. PW6 registered Crime No.14/2005 of the Excise Range, Adimali. PW7, Excise Inspector, Adimaly, conducted investigation and submitted final report. True copy of Ext.P1 mahazar, its original, Ext.P1(a), Ext.P2 search list, Ext.P2 arrest memo and Ext.P4 intimation of arrest were marked through PW1. Ext.P8, occurrence report, Ext.P9, property list and Ext.P10, copy of the forwarding note, Crl.No.1163 of 2008 6 were marked through PW6. PW4 and PW5, the independent witnesses, did not support the prosecution case. 11. The learned counsel for the appellant submitted that the contraband articles were not recovered from the possession of the accused and that the prosecution failed to establish that the contraband articles allegedly seized from the place of occurrence ultimately reached the Public Analyst. The learned counsel, relying on Ext.P9 property list, contended that the properties as mentioned in Ext.P9, though allegedly recovered on 9.12.2005, were produced before the court only on 14.12.2005. PW6, the Excise Inspector, Munnar, who produced the material objects including the samples, failed to offer any satisfactory explanation for the delayed production of the properties before the court. Absolutely there is no evidence to show that the properties including the samples remained in the safe custody of the officials concerned. 12. On the question of delay in production of the properties, the Division Bench of this Court in **Ravi v. State of** ## **Kerala & another (2011(3) KHC 121)** held thus: “8(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Crl.No.1163 of 2008 7 Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 13. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. As stated above, PW6, who produced the samples before the court failed to give evidence as to who was in possession of the samples for the period from 9.12.2005 to 14.12.2005. 14. Relying on **Bhaskaran K. v. State of Kerala and another (2020 KHC 5296)** the learned counsel for the appellant submitted that it was mandatory on the part of the detecting officer to affix the seal used by him on the seizure mahazar. Crl.No.1163 of 2008 8 15. In **Bhaskaran v. State of Kerala** (Supra), this Court held that the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample and that the nature of the seal used shall be mentioned in the seizure mahazar. 16. PW1, the detecting officer and other official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1(a) seizure mahazar is silent about the nature and description of the seal affixed on the sample bottle. 17. During the period from 9.12.2005 to 15.12.2005 (the date on which the samples reached the analyst), the sample bottles changed several hands. There is nothing to show that the properties were in the safe custody of PW6 till they were produced before the court. The Thondi Section Clerk of the court, the Excise official, who received the sample bottle from the court and the official who handed over the sample at the Chemical Examiner's laboratory were not examined. The prosecution in a case of this nature can succeed only if it is shown that the contraband article, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Crl.No.1163 of 2008 9 Examiner by change of hands in a tamper proof condition [vide **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Valsala v. State of Kerala (1993 KHC 798) and Ravi v. State of Kerala (supra)].** In the instant case there is no satisfactory link evidence to show that it was the very same contraband, allegedly seized from the accused, that reached the hands of the Chemical Examiner. 18. The learned counsel for the appellant, relying on Section 50 of the Kerala Abkari Act submitted that there was inordinate delay in completing investigation which also remained unexplained and hence the accused is entitled to benefit of doubt. The learned counsel relied on **Krishnan H. v. State [2015(1) KHC 822]** in support of his contention. In **Krishnan v. State** (supra) and in **Asokan v. State of Kerala (2016 KHC 3285)** , this Court held that the inordinate and unexplained delay in conducting investigation is fatal to the prosecution. In the instant case, though the offence was detected on 9.12.2005, the investigation was completed on 31.7.2006 and final report was submitted only on 16.9.2006. The prosecution has not offered any explanation for the delay and therefore the accused is entitled to benefit of doubt. Crl.No.1163 of 2008 10 19. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offences punishable under Sections 55(g) and 8(2) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** ab