SIVAN @ SIVADASAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936 CRL.A.No. 600 of 2004 -------------------------- AGAINST THE JUDGMENT IN SC 217/2001 of ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO.1 (ADHOC), PALAKKAD DATED 09-03-2004 APPELLANT/ACCUSED: SIVAN @ SIVADASAN, S/O. NARAYANAN NAMBIAR, VARIYATHU HOUSE, POTTUR DESOM MOTHUR AMSOM, VATTAMKULAM VILLAGE, PONNANI TALUK. BY ADVS.SRI.P.VIJAYA BHANU SRI.TONY MATHEW ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.K. JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = Crl.A. No. 600 of 2004 = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)-I, Palakkad, for the offences under Sections 58 and 8(2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-and, in default of payment of fine, to undergo simple imprisonment for six months for the offence under Section 58 of the Abkari Act. No separate sentence was awarded for the offence under Section 8(2) of the Abkari Act. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for CRA 600/2004 2 the respondent. 3. The prosecution case is briefly stated as follows: PW3, the Excise Inspector, Excise Range Office, Thrithala, and his party were on patrol at Anakkara in Anakkara Village, at about 6 p.m. on 20-10-1997. While so, the appellant was seen coming from the opposite side carrying a black 5 litre jerrycan in his right hand. Seeing the Excise Party, the appellant attempted to flee away. But, the Excise Party stopped him there. On examining the jerrycan, it was found that it contained full of illicit arrack. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW3. Ext.P2 is the Arrest Memo prepared by PW3. The jerrycan containing arrack was seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. He had drawn a sample of 300 ml. of arrack in a 375 ml.bottle from the bulk contained in the jerrycan. The sample bottle and the jerrycan containing arrack were sealed and labelled. Thereafter, PW3 reached CRA 600/2004 3 the Excise Range Office, Thrithala, with the appellant and the contraband and registered Crime No. 59 of 1997 of that Range Office. Ext.P3 is the Crime and Occurrence Report prepared by PW3. He had produced the contraband with the sample along with the List of Property before the court. He had also produced Ext.P4 Forwarding Note for subjecting the sample to chemical analysis. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. 4. The investigation of the case was conducted by PW5, the Excise Inspector, Excise Range Office, Thrithala. He had prepared Ext.P6 Scene Mahazar showing the place of occurrence in this case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Pattambi. 5. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court CRA 600/2004 4 of Session, Palakkad, and, from there, it was made over to the Assistant Sessions Court, Ottapalam. Charge was framed against the appellant alleging the offences under Sections 58 and 8(2) of the Abkari Act. He had pleaded not guilty of the charge. Later, the case was transferred to the Additional Sessions Court (Adhoc)-I, Palakkad. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P6 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offences under Sections 58 and 8(2) 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. PW3 is the Detecting Officer. PW4, an Excise Guard, CRA 600/2004 5 accompanied PW3 at the time of detecting the offence. Both these witnesses, by and large, supported the prosecution version of occurrence. PWs.1 and 2 were cited as independent occurrence witnesses. PW1 did not support the prosecution case. He was declared hostile to the prosecution. The evidence of PW2, to a certain extent, supports the prosecution case. But, his evidence is not free from infirmities. He does not belong to the place where the occurrence had allegedly taken place. He hails from Chelakkottukara in Thrissur District. His case is that he is a building contractor and, at the time of occurrence, he was going through the place of occurrence for finding out his worker Raman. But, he does not know where Raman resides or the name of Raman's father or his house name. He stated that he had not gone through the statements made in Ext.P1. Admittedly, PW2 was not questioned by PW5, the Investigating Officer. PW5 further stated that nobody else had questioned PW2 during the course of CRA 600/2004 6 investigation. This, in fact, caused prejudice to the appellant as he was deprived of the opportunity to test the veracity of the evidence given by PW2 before the court. In the light of all these facts, this Court is of the considered view that the evidence given by PW2 cannot be treated to be a reliable one. Then, the evidence of PWs.3 and 4 alone is available. Is it safe to convict the appellant for serious offences under Sections 58 and 8(2) of the Abkari Act relying on the evidence of PWs.3 and 4 ? 7. The occurrence in this case had taken place on 20-10-1997. PW5 had prepared Ext.P6 Scene Mahazar on 12-5-2000 i.e., after a period of 2½ years. What was the reason for occurring such a long delay in preparing the Scene Mahazar? No explanation had been offered by PW5 or any other official witnesses for such a delay. Whether Ext.P6 is a reliable one? It is noted in Ext.P6 that PW5 had located the place of occurrence by questioning the neighbouring people and also by seeing that place directly. CRA 600/2004 7 Can this be believed? There is absolutely no evidence to show that the neighbouring people claimed to have been so questioned by PW5 were eye witnesses to the occurrence. Admittedly, the occurrence witnesses cited by the prosecution had not been questioned for ascertaining the place of occurrence. What is the sanctity of the claim of PW5 that he could directly see and ascertain the place of occurrence? This statement made in Ext.P6 is without any basis. Be that as it may. PW5 deposed before the court that he had located the place of occurrence in Ext.P6 on the basis of Ext.P1 Mahazar. Therefore, while he was in the witness box, he had no case as noted in Ext.P6 as to how he located the place of occurrence. Is it possible to locate the place of occurrence based on the statement contained in Ext.P1? Ext.P1 simply says that the place of occurrence is the western side of Engineer Road on the western side of the line building of one Ummer Haji. Presumably, a line building will be a long one. In such a circumstance, how CRA 600/2004 8 can a particular place be located by PW5 as the place of occurrence in Ext.P6 based on the statement contained in Ext.P1? In Ext.P6, a rough plan is prepared by PW5 and a particular spot is noted in it as the place of occurrence. Going by the statements made in Ext.P1, it is impossible to locate a particular spot as the place of occurrence. Therefore, no sanctity can be attached either to the statement made by PW5 in Ext.P6 in respect of the place of occurrence or to the spot shown by PW5 in the rough plan prepared by him in Ext.P6. Normally, a Scene Mahazar will be prepared in the presence of witnesses. What was the special reason for PW5 not to prepare the Scene Mahazar in the presence of witnesses? Even according to PW5, as stated in Ext.P6, neighbouring people were present when preparing Ext.P6. But, PW5 has not offered any explanation for not preparing the Scene Mahazar in the presence of witnesses. For all these reasons, no sanctity can be attached to Ext.P6 prepared by PW5. Therefore, the CRA 600/2004 9 prosecution has not succeeded in establishing the place of occurrence in this case. 8. The prosecution case is that the occurrence had taken place on 20-10-1997. The Detecting Officer was the Excise Inspector of the concerned Excise Range Office. He was a competent officer to conduct the investigation of the case. But, he had not conducted the investigation. The investigation had been conducted by PW5, the Excise Inspector. It is seen from the records that the witnesses in this case were questioned by PW5 on 30-4-2000, 1-5-2000 and on 14-5-2000. After completing the investigation, PW5 submitted the Final Report before the court on 28-9-2000. What was the reason for such delayed investigation and the delayed submission of the Final Report? No explanation has been offered by the prosecution through any of the official witnesses examined in this case. 9. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section CRA 600/2004 10 reads as follows: “ **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 sub-section (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 Sub Section (2) of Section 173 of Cr.P.C to the concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. No CRA 600/2004 11 explanation was also offered for happening so. 10. Ext.P5 Certificate of Chemical Analysis dated 30-03-1999 had been received by the court on 01-06-1999. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P5. But, in this case, the Investigating Agency had taken more than one year and three months for submitting the Final Report before the court after the receipt of Ext.P5 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 11. The right to a speedy trial is a constitutional as well as a statutory right. The speedy trial includes speedy investigation as well. [See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077)** ]. In the case on hand, such a constitutionally and statutorily guaranteed right of CRA 600/2004 12 speedy trial has been infringed by the inordinate delay occurred in conducting the investigation of the case and submitting the Final Report before the court. 12. When all these facts are considered, it is unsafe to convict the appellant based on the evidence of PWs.3 and 4. The appellant, at least, is entitled to the benefit of doubt. 13. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal. 14. 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 Sections 58 and 8(2) 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** ks True copy P.S. TO JUDGE CRA 600/2004 13