Sivankutty, S/o Karunakaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943 CRL.A NO. 1443 OF 2007** **AGAINST THE JUDGMENT IN SC 52/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** SIVANKUTTY,S/O. KARUNAKARAN, PATHIPPALATHU VEEDU, BODEMATTU BHAGAM,, KALKOONTHAL VILLAGE, NEDUMKANDAM, IDUKKI. BY ADV SOORAJ T.ELENJICKAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR SRI.ARAVIND V. MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.9.2021, THE COURT ON 13.10.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.1443/2007 -:2:- J U D G M E N T Dated this the 13[th ] day of October, 2021 This is an appeal filed u/s 374(2) of the Code of Criminal Procedure (for short 'Cr.P.C.') against the judgment of conviction and sentence passed by the Additional Sessions Court (Adhoc)-II, Thodupuzha in SC No.52/2006 dated 3/7/2007. 2. The accused/appellant faced trial for an offence punishable under Sections 55(a) and 8(1) and (2) of the Abkari Act. The prosecution case in short is that on 20/9/2004 at 7.10 p.m. at Thannimoodu in Mundyeruma - Kallar road, the accused was found in possession of 750 ml of arrack in contravention of the Abkari Act and the Rules. 3. PW1, the Sub Inspector of Police, Nedumkandam Police Station, while conducting vehicle check and Abkari raid on 20/9/2004 at 6.50 p.m. near Thannimoodu Junction, found an autorickshaw bearing Regn.No.KL-17 A 3282 passing through Mundyeruma-Kallar road towards Kallar side. He stopped the autorickshaw. The accused, who was sitting on the back side of Crl.Appeal No.1443/2007 -:3:- the autorickshaw, got down and ran away. PW1 chased and apprehended him. On his body search, PW1 could find 750 ml bottle containing arrack concealed in his hip. The accused was arrested at the spot. Sample of arrack was taken in two 180 ml bottles. It was sealed and packed in the presence of witnesses. He took the accused as well as the seized contraband article to the police station and registered crime against the accused. Ext.P3 is the FIR. The sample was sent for chemical analysis and after the analysis, the report was received which was marked as Ext.P7. After completing the investigation, the final report was filed before the learned Magistrate. The learned Magistrate, after complying with the formalities, committed the case for trial to the Court of Sessions. 4. The accused appeared before the court below. There was an omission to frame charge and the evidence was proceeded without framing charge. When the case was posted for questioning u/s 313 of Cr.P.C., it was noticed that no charge was framed. Hence, the charge under Sections 55(a), 8(1) and (2) of the Abkari Act was framed. The charge was read over and explained to the accused who pleaded not guilty. Crl.Appeal No.1443/2007 -:4:- 5. The evidence of the prosecution consists of PW1 to PW4 and Exts.P1 to P8. MO1 and MO2 were identified. On the side of the defence, DW1 was examined. After trial, the court below found that the accused has committed offence punishable u/s 8(2) of the Abkari Act and accordingly he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `1,00,000/- in default to suffer rigorous imprisonment for a period of one month as per the impugned judgment. The said judgment is under challenge in this appeal. 6. Heard both sides. 7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant contending that there is no acceptable legal evidence to prove the guilt of the accused other than the interested testimony of PW1, the detecting and investigating officer. The counsel further submitted that there is a delay of two days in producing the contraband article before the court. The counsel also submitted that the court below committed illegality in framing the charge after the examination of the prosecution witnesses. Crl.Appeal No.1443/2007 -:5:- 8. I will first consider the submission of the learned counsel for the appellant regarding the alleged illegality committed by the court below in framing the charge. It is true that there was an omission on the part of the court below to frame charge at the initial stage and the evidence was proceeded without framing the charge. When the case was posted for questioning u/s 313 of Cr.P.C., the court below noticed that no charge was framed and hence, the charge was framed at that stage. 9. S.464 of Cr.P.C. speaks of the effect of omission to frame, or absence of, error in, charge. Sub-section (1) thereof provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. The Constitution Bench of the Apex Court as early as in 1956 in _**Willie (William) Slaney v. State of Madhya Pradesh**_ (AIR 1956 SC 116) has held that absence of Crl.Appeal No.1443/2007 -:6:- charge would vitiate the conviction only if it has caused prejudice to the accused and has in fact been occasioned thereby. Following the Constitution Bench in _**Willie Slaney**_ (supra), three Judge Bench of the Apex Court in _**Gurbachan Singh v. State of Punjab**_ (AIR 1957 SC 623), observed that the Court is not to look into technicalities but to the substance and held thus: _“In judging a question of prejudice, as of guilt courts must act with a broad vision and look to the substance and not the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself_ ”. In _**Shamnsaheb M. Multtani v. State of Karnataka**_ [(2001) 2 SCC 577], the Apex Court considered the meaning of the expression 'failure of justice' occurring in S.464 of Cr.P.C. and held that a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. Thus, an order by a court of competent jurisdiction will not become invalid unless it is so that a failure of justice has in fact been occasioned because of any error or omission or irregularity in framing the charge. Merely for the reason that the Crl.Appeal No.1443/2007 -:7:- charge was framed after the evidence was over and when the case was posted for questioning u/s 313 of Cr.P.C., the accused cannot be given retrieve unless it is shown that prejudice has been caused to him resulting in failure of justice. The burden is on the accused to show that the failure of justice has been occasioned. 10. The records would show, notwithstanding the aforesaid irregularity in the framing of the charge, the accused was fully aware of the accusation levelled against him and effectively defended the case by cross-examining the witnesses and replying to the questions put to him u/s 313 of Cr.P.C. The objection as to the irregularity in framing the charge has been raised for the first time before this court. For all these reasons, I am of the view that no prejudice has been caused to the accused nor was there any failure of justice on account of the framing of charge after the completion of evidence. 11. The main contention put forward by the learned counsel for the appellant is about the delay in producing the contraband articles at the court below. It is settled that the unexplained delay in producing the contraband article at the Crl.Appeal No.1443/2007 -:8:- court is fatal to the prosecution case. A Division Bench of this Court in _**Ravi v. State of Kerala**_ [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in _**Ravi v. State of Kerala**_ [2018 (5) KHC 354] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in _**Ramankutty v. Excise Inspector**_ [2013 (3) KHC 308]. Relying on the Division Bench's decision in _**Ravi**_ (supra), recently, another Single Bench of this Court in _**Anilkumar v. State of Kerala**_ (2020 (4) KLT 34) has also took the view that the delay in the producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. The Apex Court in _**State of Uttar Pradesh v. Hansraj @ Hansu**_ [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, Crl.Appeal No.1443/2007 -:9:- prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. 12. Coming to the facts of the case, the detection of the offence was on 20/9/2004. The accused was arrested on the spot. He was produced at the Court on 21/9/2004. Still, the contraband article was produced only on 22/9/2004. Thus, there is two days delay. This has not been explained at all. No explanation has been given in the chief examination of PW1. When a question was put in the cross-examination, he simply answered that the contraband substance was kept in his safe custody till it was produced at the Court. No other explanation was offered. There was absolutely no evidence to show as to how and in what condition the contraband articles were preserved at the police station. In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. Hence, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, the criminal appeal stands allowed. The Crl.Appeal No.1443/2007 -:10:- conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and accordingly he is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** Rp