Sukumaran @ Suku v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** **Crl.Rev.Pet.No.899 OF 2008** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE DATED 16TH FEBRUARY 2008 IN CRL.APPEAL NO.269 OF 2007 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE SPL.JUDGE, NDPS ACT CASES, THODUPUZHA AND AGAINST JUDGMENT DATED 23RD AUGUST 2007 IN SESSIONS CASE NO.595 OF 2005 ON THE FILE OF ASSISTANT SESSIONS JUDGE, KATTAPPANA** ## **CRL.REVISION PETITIONER : APPELLANT/ACCUSED:** **SUKUMARAN @ SUKU, S/O.PEETHAMBARAN, ONAMKUTTIYIL HOUSE, VALIYATHOVAL KARA,, PAMPADUMPARA VILLAGE.** **BY ADVS. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SMT.K.SUNITHA VINOD** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.06.2020, THE COURT ON 18.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.899/2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.899 of 2008 ----------------------------------------Dated this the 18[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.595/2005 on the file of the Court of the Assistant Sessions Judge, Kattappana. 2. The prosecution case is that, on 27.03.2004, at about 19:45 hours, the Sub Inspector of Vandanmedu police station found the petitioner/accused engaged in selling arrack at the property behind his house in Pampadumpara Panchayat. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. Crl.R.P.No.899/2008 3 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P6 documents and MO1 to MO3 material objects. DW1 was examined on the side of the accused. 5. The trial court found the petitioner/accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo imprisonment for a period of one year. 6. The petitioner filed Crl.A.No.269/2007 before the Court of Session, Thodupuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard. Perused the records. Crl.R.P.No.899/2008 4 9. PW4 is the Police Constable who was in the police party led by the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 10. PW1 and PW2 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. They even denied the signature in Ext.P1 seizure mahazar. 11. Ext.P6 is the chemical examination report received in respect of the samples which were sent for analysis. It shows that the two samples sent for analysis contained ethyl alcohol of different strength. 12. The Sub Inspector who detected the offence had also conducted the investigation of the case. He was not examined by the prosecution. 13. PW3 is the Sub Inspector who filed final report against the accused after verifying the investigation which was conducted by the Sub Inspector who detected the offence. PW3 stated that the Sub Inspector who detected the offence and conducted the Crl.R.P.No.899/2008 5 investigation of the case was bedridden. The records of the case reveal that the process issued to him from the trial court was returned with medical certificate showing his inability to appear before the court. 14. The plea of the accused is that he was falsely implicated in the case due to the enmity entertained towards him by the Sub Inspector pursuant to a quarrel occurred between them. DW1 was examined by the accused to prove this plea. As rightly found by the courts below, the evidence of DW1 is not sufficient to find that the case is one foisted upon the accused by the Sub Inspector on account of any personal animosity towards him. 15. Non-examination of the Sub Inspector who detected the offence and who conducted the investigation of the case does not lead to an inference that the case is one foisted upon the accused. However, non-examination of the Sub Inspector has caused prejudice to the accused because he was denied an opportunity to cross-examine the detecting officer and to bring out in evidence circumstances to show that his plea is probable. Crl.R.P.No.899/2008 6 16. Moreover, there was delay in producing the material objects before the court. The occurrence was on 27.03.2004. Ext.P4 is the property list prepared by the Sub Inspector for producing the can and the bottle containing the sample before the court. It shows that the sample as well as the can was produced before the court only on 01.04.2004. There was a delay of three days in producing the sample as well as the can containing the residue before the court. The prosecution has not explained the delay in producing the material objects before the court. The accused had also lost the opportunity to seek an explanation from the Sub Inspector regarding the delay in producing the sample as well as the can before the court and it has also caused prejudice to the accused. 17. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate Crl.R.P.No.899/2008 7 forthwith either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 18. The Sub Inspector who detected the offence and conducted the investigation of the case was not examined. There was delay in producing the contraband substance before the court. The prosecution has not explained the delay in producing it before the court. As the Sub Inspector was not examined, the accused had no proper opportunity to establish his plea. In these circumstances, conviction recorded against the petitioner/accused by the trial court solely on the basis of the uncorroborated testimony of the police constable, who had accompanied the Sub Inspector, cannot be sustained. Crl.R.P.No.899/2008 8 19. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act, which has been confirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond, if any, executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy PS to Judge**