Shaji v. Excise Inspector, Thamarassery Excise Range & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938 Crl.Rev.Pet.No.3913 of 2009 (D) -----------------------------------AGAINST THE JUDGMENT IN CRA 695/2008 of ADDL. SESSIONS COURT, KOZHIKODE DATED 26-10-2009 AGAINST THE JUDGMENT IN SC 905/06 of ADDL. ASST. SESSIONS JUDGE-III, KOZHIKODE DATED 30-7-08 ----------- ## REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------- SHAJI, S/O.POOZHAKKUNNUMMAL CHATHU, PUTHUPPADI AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.SANTHARAM.P RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------- 1. EXCISE INSPECTOR, THAMARASSERY EXCISE RANGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. R. P. No.3913 of 2009 -----------------------------------------------Dated this the 31[st] day of May, 2016 ## **ORDER** 1. kThe petitioner was convicted by the Additional Assistant Sessions Court-III, Kozhikode, for the offence under Section 8(1) read with Section 8(2) of the Abkari Act. He was 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 three months. The petitioner preferred an appeal challenging the conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction and sentence passed by the trial court. Challenging the correctness, legality or propriety of the conviction and sentence, the petitioner has preferred this revision petition. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondents. Crl. R. P. No.3913 of 2009 -2- 3. The prosecution case is that the petitioner was found in possession of 1.5 litres of arrack in a 1.5 litre bottle at about 8.00 p.m. on 12-12-2002. 4. The trial court framed a charge against the petitioner alleging the offence under Section 8(1) read with Section 8(2) of the Abkari Act. The petitioner pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P7 and M.O.1 on their side. The petitioner was examined under Section 313 of Cr.P.C. The defence has not adduced any evidence. The trial court, after considering the matter, found the petitioner guilty of the offence under Section 8(1) read with Section 8(2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. The appeal filed by the petitioner came to be dismissed confirming the conviction and sentence passed by the trial court. 5. Learned counsel for the petitioner submits that the Detecting Officer had taken only one sample of the Crl. R. P. No.3913 of 2009 -3- contraband allegedly seized from the petitioner. This is in violation of the mandatory provision in Clause 34 of the Excise Manual. He further submits that there was a delay of about three and a half years in conducting and completing the investigation of the case which, in fact, prejudiced the petitioner. Therefore, this is a fit case warranting interference by this Court and ordering acquittal of the petitioner of the offence alleged against him, contends the learned counsel. 6. Learned Public Prosecutor has not disputed the fact that PW1, the Detecting Officer, had taken only one sample of the contraband at the time of detecting the offence. The contraband was seized by PW1 under Ext.P1 Seizure Mahazar. It can be seen from this document that PW1 had drawn 180 ml. of arrack in a 180 ml. bottle as sample from the bulk allegedly seized from the petitioner. His deposition also shows that he had taken only one sample of the contraband. As per Excise Manual, the officer concerned is bound to take a minimum of two samples of the contraband Crl. R. P. No.3913 of 2009 -4- seized. This is a mandatory provision. Admittedly, PW1 had taken only one sample of the contraband. Therefore, there is violation of the mandatory provision contained in Clause 34 of the Excise Manual. The violation of such a mandatory provision is fatal to the prosecution case. This view is fortified by the decision of a learned single Judge of this Court in Crl. Appeal No.47 of 2006. In that judgment, the learned Judge observed as follows: - “11. The insistence for taking two samples has a purpose to serve. If the accused feels that the first sample sent for examination was not sufficient or that there is some defect, of course he can seek the court to sent the second sample for examination. That is a safeguard given to the accused which cannot be denied at all by taking only one sample. It is clear that P.W.1 had taken only one sample. It has been held by this Court that violation of such provision is fatal.” Therefore, in that case, the conviction and sentence passed by the trial court were set aside and the accused was acquitted of the charges levelled against him. This judgment was followed by this Court in Crl. R.P. Nos.2316 of 2011 and 2529 of 2009 and allowed the revision petitions by setting Crl. R. P. No.3913 of 2009 -5- aside the convictions and sentences passed by the courts below for the offence under Section 8(1) read with Section 8 (2) of the Abkari Act and the revision petitioners were acquitted of the said offence. The petitioner in the case on hand also is entitled to be acquitted of the offence under Section 8(1) read with Section 8(2) of the Abkari Act following the judgment and the orders rendered by this Court in the above cases. 7. The alleged occurrence in this case was on 12-12-2002. PW6, the Excise Inspector, Excise Range Office, Thamarassery, had conducted the investigation of the case. He had questioned the witnesses on 01-04-2006, 03-04-2006, 04-04-2006 and on 05-04-2006 as evident from his evidence. PW6 has not offered any explanation justifying the delay that occurred in commencing and conducting the investigation of the case. 8. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: Crl. R. P. No.3913 of 2009 -6- “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. Ext.P7 Certificate of Chemical Analysis had been received by the court on 02-04-2004. The investigating agency should have submitted the Final Report before the court soon after the Crl. R. P. No.3913 of 2009 -7- receipt of Ext.P6. But, the investigating agency had taken more than two years for submitting the Final Report before the court after the receipt of Ext.P7 by the court. The Final Report was submitted only on 17-05-2006. This inordinate delay that occurred in commencing and conducting investigation and submitting Final Report before the court is fatal, in the facts and circumstances, to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 9. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077)** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. 10. For the foregoing reasons, the conviction and sentence passed by the courts below against the appellant Crl. R. P. No.3913 of 2009 -8- are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 8(1) read with Section 8(2) of the Abkari Act. 11. In the result, the conviction and sentence passed by the courts below against the appellant are set aside. He is acquitted of the offence under Section 8(1) read with Section 8(2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the petitioner as directed by this Court shall be returned to him. This Criminal Revision Petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. R. P. No.3913 of 2009 -9-