Sukumaran Nair v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936 CRL.A.No. 606 of 2004 ------------------------AGAINST THE JUDGMENT IN SC 290/1999 of ADDL. SESSIONS COURT, KOLLAM DATED 31-03-2004 ------- APPELLANT/ACCUSED: ------------------------- SUKUMARAN NAIR, S/O. RAMAKRISHNAN NAIR, PREETHABHAVANAM, VELUNTHARA, VALYAPADAM MURI WEST KALLADA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.606 of 2004 -----------------------------------------------Dated this the 27[th] day of May, 2014 ## **JUDGMENT** The appellant was convicted for the offence under Section 55(a) of the Abkari Act by the Additional Sessions Court (Adhoc)I, Kollam. He was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rupees One Lakh and, in default of payment of fine, to undergo simple imprisonment for a period of one year. 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 respondent. 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Sasthamcottah Police Station, and his party were on patrol at about 8.00 p.m. on 26-11-1998. When they reached Vettolilkadavu, the Crl. Appeal No.606 of 2004 -2- appellant was found with a two litre jerrycan and a glass tumbler. Seeing the police party, the appellant attempted to flee away. But, he was stopped there by the police party. On examination, it was found that the jerrycan contained about ½ litre of illicit arrack. The appellant was arrested by PW4 then and there. He had taken a sample of 180 ml. of arrack in a bottle from the jerrycan. The sample bottle was sealed. The jerrycan containing arrack, sample and the glass tumbler were seized then and there under Ext.P1 Seizure Mahazar by PW4. Thereafter, these properties along with the appellant were brought to Sasthamcottah Police Station and registered a case by PW4. He had conducted investigation of the case and that investigation was continued and completed by PW5, the Assistant Sub Inspector of Police, Sasthamcottah Police Station. PW5 submitted Final Report against the appellant before the court. 4. The court below framed a charge against the -3- Crl. Appeal No.606 of 2004 appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant was found guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(i) of the Abkari Act. 5. The appellant has raised various contentions in this appeal. But, at the hearing, the learned counsel for the appellant urged only three contentions. (1) There is unexplained inordinate delay in producing the properties allegedly seized by PW4 under Ext.P1 Seizure Mahazar. (2) No evidence has been adduced by the prosecution as to where the said properties were kept after it reached into the hands of PW4 till they were produced before the court on 08-02-1999. Also no answer is forthcoming as to under whose custody they were kept during the said period. (3) Part of the investigation of the case had been conducted by PW5, who was only an Assistant Sub Inspector of Police then. As per S.R.O. No.321/1996 issued by the Government of -4- Crl. Appeal No.606 of 2004 Kerala, only the police officers of and above the rank of a Sub Inspector of Police in charge of law and order working in the General Executive Branch of the Police Department were appointed to be Abkari Officers under their respective jurisdiction. An Assistant Sub Inspector of Police is not in the rank of Sub Inspector of Police. Therefore, he cannot exercise jurisdiction as an Abkari Officer and conduct investigation into the Abkari offences. He cannot also file Final Report before the court after completing investigation in an Abkari case. Here, an incompetent police officer of the rank of Assistant Sub Inspector of Police had conducted the investigation and prepared and submitted the Final Report before the court. Therefore, the investigation as well as the Final Report were incompetent to be acted upon and on that ground alone the appellant is entitled to an acquittal. 6. In the case on hand, the contraband was allegedly seized by PW4, the Sub Inspector of Police, at 8.00 p.m. on 26-11-1998. But, he had produced the contraband along Crl. Appeal No.606 of 2004 -5- with the sample before the court only on 08-02-1999 as evident from Ext.P3 List of Property. PW4, while he was in the witness box, did not offer any valid explanation for such an inordinate delay occurred in producing the properties before the court. On the other hand, he deposed before the court that he was unaware of the reason why it was so delayed. This answer given by PW4 is totally insufficient. It cannot be accepted as a valid explanation for the delay in producing the properties 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 Single 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 is fatal to the prosecution case. In the case on hand, the answer of PW4 was that he was unaware of the reason for the delay. PW5 also did not offer any valid reason explaining Crl. Appeal No.606 of 2004 -6- the delay in producing the properties before the court. Therefore, this unexplained inordinate delay 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. Where the properties were kept after they were seized by PW4 on 26-11-1998 till they were produced before the court on 08-02-1999 ? No evidence has been adduced by the prosecution either through PW4 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 Single 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 the contraband) the chance of -7- Crl. Appeal No.606 of 2004 tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to benefit of doubt in that case. In the case on hand also such a benefit is to be extended to the appellant. 8. As per S.R.O. No.321/1996 issued by the Government of Kerala, an Assistant Sub Inspector of Police, in this case PW5, is incompetent to conduct investigation or to prepare and submit Final Report in the case. Only those officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were only appointed as Abkari officers for exercising powers under their respective jurisdiction. Therefore, on this ground also, the appellant is entitled to succeed in this appeal. 9. For the foregoing reasons, the impugned conviction and sentence passed by the court below are liable to be set aide. The appellant is entitled to be acquitted of the offence under Section 55(a) of the Abkari Act. -8- Crl. Appeal No.606 of 2004 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 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** ks & kns/- //TRUE COPY// P.A. TO JUDGE