Sreedharan Achary v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 8TH DAY OF OCTOBER 2015/16TH ASWINA, 1937** ## **CRL.A.No. 923 of 2005 ( )** **-------------------------AGAINST THE JUDGMENT IN SC 524/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACT -I, PATHANAMTHITTA DATED 13-05-2005** **-------------------------------------------** **APPELLANT(S)/ACCUSED:: ------------------------------------------** **SREEDHARAN ACHARY, S/O. RAMAN, AGED 55 YEARS, RESIDING AT SREEKUMAR SADANAM VEEDU THOPPIL THEKKETHIL, ELAVUMTHITTA MURI MEZHUVELI VILLAGE, KOZHENCHERRY TALUK.** **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S)/COMPLAINANTS:: --------------------------------------------------------** **STATE OF KERALA, REP. BY EXCISE INSPECTOR, PATHANAMTHITTA EXCISE RANGE (CRIME NO.29/1998), REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **K.RAMAKRISHNAN, J.** ----------------------------------------------------------- ## **Criminal Appeal No.923 of 2005** ----------------------------------------------------------Dated this the 8[th] day of October, 2015 ## **JUDGMENT** Accused in S.C.No.524/03 on the file of the Additional District & Sessions Judge(Ad-hoc), Fast Track-I, Pathanamthitta, is the appellant herein. The appellant was chargesheeted by the Excise Inspector, Excise Range, Pathanamthitta in Crime No.29/98 of Pathanamthitta Excise Range under Section 8(1) & (2) of the Abkari Act. 2. The case of the prosecution in nutshell was that on 19.08.1998, at about 12 noon, the accused was found to be in possession of 4 litres of arrack in a 5 litre cannas and found transmitting the same through the road in front of the house of one Hill Park Sosamma with name Nediyakala-Pathisseri mukku public road, in violation of the provisions of Abkari Act and thereby he had committed the offence punishable under Sections 8(I) & (II) of the Abkari Act. _Criminal Appeal No.923 of 2005 2_ 3. After investigation, final report was filed before the Judicial First Class Magistrate Court-I, Pathanamthitta, where it was taken on file as C.P.No.24/03. After complying with the formalities, the learned Magistrate committed the case to Sessions Court, Pathanamthitta, where it was taken on file as SC.No.524/03 and thereafter, it was made over to Additional Sessions Court, (Ad-hoc)-I, Pathanamthitta, for disposal. 4. When the accused appeared before the court below, after hearing both sides, charge under Section 8(1) &(2) of the Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 4 were examined and Exts.P1 to 7 and MO1 were marked on his side. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure(hereinafter called 'the Code') and he denied all the incriminating circumstances brought _Criminal Appeal No.923 of 2005 3_ against him in the prosecution evidence. He had further stated that no article was seized from his possession and he was taken into custody from his black smithy by the Excise Inspector and he has been falsely implicated in the case. Since, the evidence in this case did not warrant an acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. But no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) & (2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for 2 years and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for 2 years. Set off was allowed for the period of detention already undergone in this case under Section 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below. 5. The counsel for the appellant submitted that _Criminal Appeal No.923 of 2005 4_ the appellant is no more. Since, fine is also imposed as part of the sentence and in view of the proviso under Section 394 of the Code and the decision reported in _**State of AndraPradesh v. Narasimha kumar**_ [2006(3) KLT 505], the appeal will not abate on the death of the accused. So it was decided to dispose of on merit. 6. Heard the learned counsel for the appellant Sri.R.Krishnakumar, counsel representing Sri.Muhammed Haneef and Smt.Seena Ramakrishnan, the learned Public Prosecutor appearing for the State. 7. The counsel for the appellant submitted that the samples seal was not produced before court. Further the forwarding note was not marked. There was delay of nearly 4 years in conducting the examination of witnesses and submitting the final report. All these have caused prejudice to the accused. Further, though, there was a label affixed according to the mahazar, no such label was seen in MO1 cannas, when it was marked in court. So all these things will go to show that the articles seized were _Criminal Appeal No.923 of 2005_ _5_ not the articles produced in court. In the chemical analysis report does not relate to the representing samples said to have been taken from the contraband articles alleged to have been seized from the possession of the accused. So, according to the learned counsel for the appellant, the lower court was not justified in convicting the appellant and he is entitled to get acquittal. 8. On the other hand, the learned Public Prosecutor submitted that the accused along with the contraband articles were produced before the court on the same day and as such there is no possibility of tampering and the false implication has not been properly established. Further, mere delay in questioning the witnesses alone is not sufficient for acquittal unless, prejudice has been established by the accused. According to the learned counsel, the court below was perfectly justified in convicting the appellant for the offences alleged. 9. The case of the prosecution as emerged _Criminal Appeal No.923 of 2005 6_ from the prosecution witnesses was as follows. On 19.08.1998 at about 12 noon, PW1, the Preventive Officer along with PW2, Excise Guard and others were doing patrol duty along public road and when they reached in the front of the house of one Hill Park Sosamma, they saw the accused coming with MO1 cannas on his hand and on seeing Excise party, he got perplexed and tried to move away from that place. So, they stopped him and on examination of the cannas by PW1, it was revealed that it contained 4 liters of some liquid, which on further examination by him satisfied that it was arrack. So, he arrested the accused and prepared Ext.P2 arrest memo and gave arrest intimation to his wife. He took sample from the liquid seen in MO1 cannas and sealed the same and affixed label, containing the name of the accused and also signature of the accused and himself and sealed the cannas and labelled the same in the same fashion and seized the same as per Ext.P1 mahazar in the presence of PW3 and another. Thereafter, he came to Excise Office, _Criminal Appeal No.923 of 2005 7_ since he was in charge of the Excise Inspector on that day, he registered Ext.P3 crime and occurrence report as Crime No.29/98 of Pathanamthitta Excise Range against the accused, under Section 8(1) & (2) of the Abkari Act. He prepared Ext.P4 thondi list and requisition for sending the article for analysis and Ext.P5 remand report and produced the accused before the court on the same day along with Ext.P5 remand report. On the basis of the requisition given by him, the sample was sent from court for chemical analysis and Ext.P6 chemical analysis certificate obtained. The investigation in this case was conducted by PW4, the Excise Inspector. He questioned the witnesses and recorded their statements. He collected the chemical analysis report and completed the investigation and submitted final report. 10. PW3 is an independent witness for the seizure. He denied having seen the seizure. He had even denied the signature in Ext.P1, though he admitted that he had signed some papers, as requested by the Excise _Criminal Appeal No.923 of 2005 8_ Officials. So it is clear from this that he was trying to help the accused and that was the reason why he was not supporting the case of the prosecution. He had admitted that he knew the accused and he is having a black smithy near the house of one Sosamma. So, it quite natural that he is not supporting the case of prosecution and wanted to help the accused. 11. Then the evidence available is that of PW1, the Preventive Officer, PW2, the Excise guard to prove the seizure. PW1 had categorically stated that he was doing patrol duty along with PW2 and others and when they reached in front of the house of one Hill Park Sosamma, they saw the accused coming with MO1 cannas and on seeing the excise party, he tried to move away from that place. So they stopped him and on an verification of the cannas, PW1 was satisfied that it contained 4 liters of arrack. So he arrested him and took sample and sealed and labeled the same and sealed and labelled the cannas also in the same fashion and seized the same as per _Criminal Appeal No.923 of 2005 9_ Ext.P1 mahasar, came to Excise office and prepared the other documents, as he was in charge of Excise Inspector in that day. The evidence of PW1 was corroborated by the evidence of PW2 on these aspects. Though, they were cross examined at length, nothing was brought out to discredit their evidence on this aspect. Though the accused had a case that he was arrested from his black smithy by the Excise Inspector, no acceptable evidence was adduced to prove this fact. So under the circumstances, court below was perfectly justified in relying on the evidence of PWs 1 and 2 and coming to the conclusion that the accused was arrested with MO1 cannas containing 4 liters of liquid said to be arrack, by the detecting officer. 12. Exts.P1 to P5 will go to show that the articles were produced before court on the same date of detection. Further, Ext.P4 thondi list, it shows that the cannas as well as the sample bottle were sealed and labeled. It is true that at the time when MO1 was marked, _Criminal Appeal No.923 of 2005 10_ there was no label seen. PWs 1 and 2 have stated that it was due to lapse of time that would have been damaged. Further, it is seen from Ext.P5 remand report that the requisition for sending the sample was also produced along with the documents. Mere delay in sending the sample for analysis from court alone is not sufficient to come to the conclusion that the sample does not relate to the contraband article seized. This may have some impact provided there was inordinate and unexplained delay in producing the articles before court. When sample bottles were produced before court, without delay, then it can only be presumed that the sample relates to the articles that has been seized from the possession of the accused. Further, Ext.P6 chemical examiners' report shows that the specimen seal provided, tallies in the specimen seal on the bottle. That also shows that the specimen seal impression of the seal used for sealing the sample bottle was also supplied from court, along with the requisition for analysis and that was verified at the _Criminal Appeal No.923 of 2005 11_ chemical examiners' laboratory and it was found intact. So, there is no possibility for tampering the articles as claimed by the counsel for the appellant. 13. It is true, that it is seen from the evidence PW4 that PWs 1 and 2 were questioned and their statements were recorded on 16.06.2002 and the statement of independent witnesses were recorded on 22.03.2002 and final report was filed only in the year 2002. It may be mentioned here that the final report was filed immediately after receipt of the chemical analysis report. Chemical analysis report was seen prepared only on 19.04.2003. So, it is thereafter, that the final report was filed in court. So mere delay in filing of the final report is not sufficient to acquit the accused, especially when the final report was filed after receipt of the chemical analysis report, which is the important document to prove that the articles seized was arrack and that has to be produced along with the final report. Mere delay in questioning the witnesses alone is not sufficient to acquit _Criminal Appeal No.923 of 2005 12_ the accused, unless prejudice has been established by the accused on account of the same. In this case, all the witnesses are witnesses to Ext.P1 seizure mahazar and no new witnesses were cited as well. So under the circumstances, the delay in questioning the witnesses is also not sufficient to disbelieve the case of the prosecution, so as to entitle the accused to get an order of acquittal. So under the circumstances, the finding of the court below that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of the arrack which is the offence punishable under Section 8(I) of the Abkari Act and consequential conviction entered by the court below are perfectly justifiable and the finding does not call for any interference. 14. The court below had sentenced the accused to undergo rigorous imprisonment for 2 years and also to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for 2 years. Since, the accused is no more, _Criminal Appeal No.923 of 2005 13_ the substantive sentence cannot be enforced against him. Only minimum fine has been imposed, which cannot be said to be excessive. So under the circumstances, I do not find any reason to interfere with the sentence also as substantive sentence or default sentence cannot be executed against him and the fine alone can be recovered from the property if any left by the accused. In the result, the appeal fails and the same is hereby dismissed, with the observations that the fine if any can be realised from the property of the accused, if any left by him as he is no more and the substantive sentence or default sentence cannot be enforced against him. Office is directed to communicate this order to the concerned court immediately. ## Sd/- **K.RAMAKRISHNAN JUDGE** vs /TRUE COPY/ PA TO JUDGE