Sreerengan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 13TH DAY OF JUNE 2014/23RD JYAISHTA, 1936 CRL.A.No.1243 of 2005 (F) ------------------------------S.C. NO.433/200 OF ADDL. SESSIONS JUDGE(ADHOC)II, KOLLAM ------------ APPELLANT/ACCUSED: ------------------------- SREERENGAN, S/O. SREEDHARAN, KARTHIKAYIL FROM KARAMKODU HOUSE, THEKKEVILA CHERRI MUNDAKKAL VILLAGE, KOLLAM DISTRICT. BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV SRI.T.K.KAMALJITH RESPONDENTS/STATE & COMPLAINANTS: ---------------------------------------------- ## 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, EAST POLICE STATION, KOLLAM. BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1243 of 2005 -----------------------------------------------Dated this the 13[th] day of June, 2014 ## **JUDGMENT** The appellant was convicted for the offences under Sections 8(2) and 55(a) of the Abkari Act by the Additional Sessions Court (Adhoc)-II, Kollam. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of 1 lakh for the offence under Section 8(2) of the₹ Abkari Act and, in default of payment of fine, to undergo rigorous imprisonment for one year. No separate sentence was awarded for the offence under Section 55(a) 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 the respondents. 3. The prosecution case is briefly stated as follows:- Crl. Appeal No.1243 of 2005 -2- PW3, the Station House Officer, Kollam East Police Station, and his party were on patrol on 12-05-1998. While so, they got reliable information that the appellant was selling arrack at the toddy shop at Arinalloor Thondal in Vadakkevila Village. Then, PW3 and his party left for that place. When they reached there, three persons were seen running away leaving a jerrycan in the shop. The persons thus left the place seeing the police party were the appellant, who was running that shop, and two salesmen of that shop. The police party inspected the premises and found six white jerrycans. On examination, it was revealed that all of them contained 35 litres each of spirit used for making arrack. PW3 had taken samples of 250 ml. each in 375 ml. bottles from all the six jerrycans. The contraband including the samples were sealed and seized by PW3 under Ext.P1 Seizure Mahazar at 7.30 p.m. Thereafter, at 9.30 p.m. on 13-05-1998, PW3 registered Crime No.465 of 1998 of Kollam East Police Station in respect of the occurrence. Ext.P2 is the F.I.R. thus drawn by PW3. The contraband along with the Crl. Appeal No.1243 of 2005 -3- samples and records were produced before the court. Subsequently, the three accused involved in the case were identified and arrested on different dates. The appellant was the first accused and others were accused 2 and 3. PW3 continued the investigation. He had questioned the witnesses and recorded their statements. Subsequently, on 18-08-1998, PW5, the Sub Inspector of Police, Kollam East Police Station, had taken over the investigation. He had completed the investigation and filed the Final Report before the Judicial First Class Magistrate's Court-II, Kollam, alleging the offences under Sections 8(1)/(2) and 55(a) of the Abkari Act. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kollam, and, from there, it was made over to the Assistant Sessions Court, Kollam. Subsequently, the case was withdrawn and made over to the Additional Sessions Court (Adhoc)-II, Kollam. The court below framed a charge alleging the offences under Sections 8(1)/(2) and 55(a) of Crl. Appeal No.1243 of 2005 -4- the Abkari Act against the appellant and other two accused. They pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P9 and M.Os.1 to 6 on their side. The appellant was questioned under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. DW1 was examined and Ext.D1 was marked on the side of defence. The court below, after considering the matter, found the appellant guilty of the offences alleged and convicted him thereunder and, after hearing him on the question of sentence, imposed the sentence on him. The other two accused were acquitted. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. In the case on hand, the contraband was allegedly seized by PW3, the Station House Officer, Kollam East Police Station, at 7.30 p.m. on 12-05-1998. But, he had produced the contraband along with the samples before the court only on 06-06-1998 as evident from Ext.P3 List of Property. PW3 deposed before the court that he had produced the Crl. Appeal No.1243 of 2005 -5- contraband before the court on 14-05-1998. Apart from this bald statement made by PW3 before the court, nothing is there substantiating such a case advanced by PW3. Ext.P3 document marked by the court would go to show, in unequivocal terms, that the contraband and the samples were produced before the court on 06-06-1998. On the reverse side of Ext.P3, a submission dated 06-06-1998 made by the office of the court before the learned Magistrate is seen. The submission is to the effect that as there was no space to keep the properties in the property room, they may be returned to the safe custody of the Sub Inspector of Police, Kollam East Police Station, until further orders. That submission was allowed by the learned Magistrate by writing 'Yes' on 06-06-1998 itself. Moreover, it can be seen from Ext.P3 that the learned Magistrate issued a direction on 06-06-1998 'Verify and receive'. No endorsement by the office of the court or by the learned Magistrate was made on 14-05-1998. Nothing has been produced by the prosecution in order to substantiate the case of PW3 that the contraband Crl. Appeal No.1243 of 2005 -6- was produced before the court on 14-05-1998. If, as a matter of fact, the contraband articles were produced before the court by PW3 on 14-05-1998 as claimed by him, similar endorsements made on 06-06-1998 would have been made by the office and the learned Magistrate on 14-05-1998. Therefore, the claim thus advanced by PW3 that he had produced the contraband articles on 14-05-1998 cannot be believed or accepted. Therefore, it is rejected. 6. No explanation has been offered either by PW3 or by PW5 or anybody else examined on the side of the prosecution in respect of the inordinate delay occurred in producing the contraband articles before the court. 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. A learned Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day as fatal to the prosecution case. As Crl. Appeal No.1243 of 2005 -7- already found, no valid explanation has been offered by the prosecution for the delay occurred in producing the properties before the court in this case. Therefore, this inordinate delay occurred in producing the properties before the court is fatal to the prosecution case and, on that ground alone, the appellant is entitled to an order of acquittal. 7. Where the properties were kept after they were seized by PW3 on 12-05-1998 till they were produced before the court on 06-06-1998 ? No evidence has been adduced by the prosecution either through PW3 or through PW5 or through anybody else examined by the prosecution. Moreover, there is no evidence as to under whose custody the properties were kept during the said period. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned 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 Crl. Appeal No.1243 of 2005 -8- the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out .........” Therefore, the accused in that case was found to be entitled to benefit of doubt. In the case on hand also such a benefit is to be extended to the appellant. 8. For the foregoing reasons, the impugned conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to be acquitted of the offences under Sections 8(1)/(2) and 55(a) of the Abkari Act. 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 8(1)/(2) and 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. This appeal is allowed. Sd/- ## **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.1243 of 2005 -9-