Soman v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938 CRL.A.No. 1008 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 27/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 25-04-2006 APPELLANT: ------------ SOMAN, S/O.BALAKRISHNAN, THUNDATHIL HOUSE, KOZHIMALA KARA, AYYAPPANCOIL VILLAGE. BY ADVS. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR RESPONDENT: -------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1008 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 29[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thodupuzha, for the offences under Sections 55(a) and 8(2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 55(a) of the Abkari Act. No separate sentence was passed 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 1008/06 2 the respondent. 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Kattappana Police Station, and his party were on patrol at about 8 p.m. on 30.3.2001. While so, they got reliable information that the appellant was selling arrack in his shop at Swaraj Junction. Therefore, after preparing and sending a Search Memorandum to the Judicial First Class Magistrate's Court, Kattappana, they reached that shop. The appellant was present there. During the search of that shop, a 1 ½ litre bottle containing liquid was found beneath a table in that shop room. On examining that bottle, about 1 litre of arrack was found in it. A glass tumbler smelling alcohol was also found there. Since the appellant had committed offence under the Abkari Act, he was arrested then and there by PW4 preparing Ext.P3 Arrest Memo. A 10 litre jerrycan smelling alcohol and a blue coloured cup were also found there. PW4 had drawn two samples of 180 ml. each in two 180 ml. bottles CRA 1008/06 3 from the bulk contained in the bottle. All these items were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Kattappana Police Station with the appellant, properties and the records. PW4 registered Crime No.183 of 2001 of that Police Station in respect of the occurrence. Ext.P4 is the FIR thus drawn by PW4. He had produced the properties and the records before the Judicial First Class Magistrate's Court, Kattappana. Ext.P5 is the List of Property and Ext.P6 is a copy of the Forwarding Note. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The appellant was produced before the court by PW5, the Additional Sub Inspector of Police, Kattappana Police Station. The investigation of the case was conducted by PW5. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. CRA 1008/06 4 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thodupuzha. The court below framed a charge against the appellant alleging the offences under Sections 55(a) and 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P7 and MO.1 to MO.5 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. DW1 was examined on the side of defence. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(a) 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. CRA 1008/06 5 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the appellant was found in possession of about 1 litre of arrack at about 8 p.m. on 30.3.2001 and he was arrested then and there by PW4 and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Kattappana Police Station with the appellant, properties including contraband and the records and produced them before the court. Ext.P5 is the List of Property with which the properties were produced before the court. It can be seen from this document that the properties were so produced before the court only on 6.4.2001. What was the reason for occurring such an inordinate delay in producing the properties before the court? PW4 offered the following explanations for occurring the delay in producing the properties before the court: The properties were under his safe custody till they were CRA 1008/06 6 produced before the court. The properties were kept in the almirah under his personal custody. May be because the following Saturday and Sunday were holidays or may be because of the fact that he had to attend some urgent nature of duty, production of properties before the court might have been delayed. Different reasons came together preventing the production of properties. He was not in a position to explain as to what were the urgent duties to be performed. These explanations cannot be accepted at all as genuine reasons that prevented PW4 from producing the properties before the court without delay. He himself had produced Ext.P1 Seizure Mahazar and Ext.P4 FIR before the court on 31.3.2001. Then, what was the special reason that prevented him from producing the properties alone before the court along with those documents? It is in his evidence itself that the distance between the court and the Police Station is only 100 metres. In such a circumstance, the explanations offered by PW4 cannot be accepted as real CRA 1008/06 7 reasons that prevented him from producing the properties before the court. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW4 did not tell the court in clear terms as to what were the urgent duties that prevented him from producing the contraband items till 6.4.2001 after their seizure on 30.3.2001. A bald statement like the one made by PW4 cannot be accepted as a satisfactory explanation for such an inordinate delay that occurred in producing the properties before the court. 6. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW4 is not proper and satisfactory. A learned Judge of this Court in **Ramankutty** CRA 1008/06 8 **v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, PW4 did not offer any valid reason explaining the delay in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 7. PW4 is the Detecting Officer in this case. He had supported the prosecution case. PWs.1 and 2 were cited and examined as occurrence witnesses for proving the prosecution version of occurrence. But, they have not supported the prosecution case. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their case against the appellant. It is the prosecution case as deposed by PW4 that he had conducted the search in this case after preparing and CRA 1008/06 9 sending a Search Memorandum. Such a Search Memorandum was not available before the court and hence it was not marked. A copy of that Search Memorandum was also not produced by the prosecution for the purpose of bringing home the fact that the Search Memorandum was prepared by PW4. On considering various facts already adverted to in this case, merely relying on the evidence of PW4, it is totally unsafe to convict the appellant for the serious offences under Sections 55(a) and 8(2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal of the offences alleged against him. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offences under Sections 55(a) and 8(2) of CRA 1008/06 10 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. (Hr.Gr.)To Judge CRA 1008/06 11