Shaju Mathew v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936 CRL.A.No.729 of 2005 (B) ----------------------------AGAINST THE JUDGMENT IN SC 263/2003 of ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK COURT NO.1 (ADHOC), MANJERI DATED 15-04-2005 -------- APPELLANT/ACCUSED: ------------------------- SHAJU MATHEW, S/O. MATHAI, KUNNATH HOUSE, ARAKKUZHA VILLAGE, ARAKKUZHA DESOM MOOVATUPUZHA. BY ADVS. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KEKRALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA RAMACHANDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.729 of 2005 -----------------------------------------------Dated this the 17[th] day of July, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Manjeri, for the offences under Section 55 (a), (b) and (h) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ imprisonment for two years for the offence under Section 55(a), to undergo rigorous imprisonment for five years and to pay a fine of 1 lakh and, in default of payment of fine, to₹ undergo imprisonment for three years for the offence under Section 55(b) and to undergo rigorous imprisonment for five years and to pay a fine of 1 lakh and, in default of payment₹ of fine, to undergo simple imprisonment for two years for the offence under Section 55(h). It was also directed to undergo the sentences of imprisonment consecutively. Challenging the conviction and sentence so passed by the court below, Crl. Appeal No.729 of 2005 -2- the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows : PW1, the Sub Inspector of Police, Ponnani Police Station, received reliable information on 03-03-2000 that the appellant was manufacturing illicit toddy in his rented house at Tharakkal. Therefore, after preparing Ext.P1 Search Memorandum and sending it to the court, PW1 and his party reached that house at 12.00 noon and searched the same in the presence of witnesses. The appellant was present there. During search, two white jerrycans each containing 30 litres of spirit, another jerrycan containing 25 litres of illicit toddy, about 1.750 kg. of Ammonium Sulphate in a plastic container and 4.5 kg. of yeast in a plastic cover were found. PW1 had drawn three samples of 600 ml. each of spirit in six bottles from each of the jerrycans containing spirit and those Crl. Appeal No.729 of 2005 -3- sample bottles were sealed. He had also taken three samples of 600 ml. each of illicit toddy from the bulk contained in the jerrycan. Those samples were also sealed. The three jerrycans containing spirit and illicit toddy were also sealed. Three samples of 25 gm. each of Ammonium Sulphate were taken in three separate plastic covers from the bulk contained in the plastic container and sealed them. Three samples of 25 gm. each of yeast were taken in three separate plastic covers from the bulk in the plastic cover and sealed them. Two plastic buckets were seen in the Verandah of that house. One plastic hose pipe, one plastic 'arippa', one 1 litre size aluminum measuring vessel and one steel plate were also there in the house. All these items were described in Ext.P2 Search List and seized them by PW1. The appellant was arrested by PW1 at 1.30 p.m. preparing Ext.P3 Arrest Memo. Thereafter, PW1 reached Ponnani Police Station with the appellant and the properties and registered Crime No.58 of 1999 of that Police Station. Ext.P4 is the FIR thus drawn Crl. Appeal No.729 of 2005 -4- by PW1. He had produced the appellant along with the Remand Report before the court. He had also produced the properties before the court describing them in Ext.P5 List of Property. 4. PW12, the Circle Inspector of Police, Ponnani, had taken over the investigation of the case on 03-03-2000 itself. He had questioned the witnesses and recorded their statements. Later, the investigation was taken over by PW13, the Circle Inspector of Police, Ponnani. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Ponnani. 5. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Manjeri, and, from there, it was made over to the Assistant Sessions Court, Tirur. The Assistant Sessions Court framed a charge against the appellant alleging the offences under Section 55(a), (b) and (h) of the Abkari Act. The Crl. Appeal No.729 of 2005 -5- appellant pleaded not guilty of the charge. Later, the case was made over to the Additional Sessions Court (Adhoc)-I, Manjeri. The prosecution examined PWs.1 to 13 and marked Exts.P1 to P17 and MO.1 to MO.11 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied the incriminating circumstances shown against him. The defence had examined DWs.1 and 2 and marked Exts.D1 and D2. The court below, after considering the matter, found the appellant guilty of the offences under Section 55(a), (b) and (h) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that the offences were detected during the search of the rented house of the appellant by PW1 at 12.00 noon on 03-03-2000. During such search, the contraband items described in Ext.P2 Search List were found Crl. Appeal No.729 of 2005 -6- and they were seized by PW1. PW1 deposed that he had produced the properties before the court along with Ext.P5 List of Property on 04-03-2000. Ext.P5 shows that the properties reached the court only on 14-03-2000. No entry or endorsement appears on Ext.P5 to the effect that those properties reached the court on 04-03-2000 as claimed by PW1. PW1 offered certain explanations in this regard. He stated that when the properties were produced on 04-03-2000, due to inconvenience, they were returned from the court. As directed by him, the properties were produced before the court 2 or 3 times, but they were returned from the court. Thus, the properties happened to be produced before the court only on 14-03-2000. Whether this explanation offered by PW1 can be accepted? It is the practice in court that if there is any difficulty like want of space to keep the properties in court, they would be returned from the court for safe custody to the Police Officers or Abkari Officers for which specific orders will be Crl. Appeal No.729 of 2005 -7- issued from the court. Usually such orders will be noted on the List of Property itself. In this case, even though PW1 claimed that the properties were produced 2 or 3 times before the court and on all those occasions the properties were returned without receiving them by the court, it is not supported by any evidence. Moreover, the explanation for the delay thus offered by PW1 was not even attempted to be established by examining the concerned property clerk of the court. The appellant was facing three serious offences alleged against him by the prosecution. In such a circumstance, being a significant matter, PW1 should have insisted for some endorsement from the court to the effect that the properties were returned from the court if, in fact, they were so returned as claimed by PW1. In the absence of such endorsements and the examination of the concerned property clerk, in a case like this, this Court cannot accept the explanation so offered by PW1. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid Crl. Appeal No.729 of 2005 -8- down that there should be 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 reasons stated in that judgment, that an unexplained delay of a single day as fatal to the prosecution case. In the case on hand, as already found, no valid explanation has been offered by the prosecution for the delay occurred in producing the properties before the court. Therefore, the delay occurred in producing the properties before the court is fatal to the prosecution case. 7. Another aspect also has to be considered here. PW1 deposed that after returning the properties from the court on 04-03-2000, they were under the custody of the Writer of the Police Station. It was the usual practice to keep the properties by the Station Writer as normally he will be available in the Station. He further stated that he was aware of the fact where the properties were kept. This explanation Crl. Appeal No.729 of 2005 -9- offered by PW1 does not prove where actually the property was kept. In the light of such deposition of PW1, the prosecution should have examined the Station Writer for the purpose of proving whether it was under his safe custody or not. That was not done in this case. 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 also such a benefit has to be extended to the appellant. 8. For the foregoing reasons, the impugned conviction and sentence passed by the court below are liable to be set aside. The appellant is entitled to an order of acquittal of the -10- Crl. Appeal No.729 of 2005 offences under Section 55(a), (b) and (h) of the Abkari Act. 9. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offences under Section 55(a), (b) and (h) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE