Sundaran (Died) S/o Velu v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** ## **CRL.A.No.1454 OF 2008** **AGAINST THE JUDGMENT DATED 27-06-2008 IN SC 121/2007 OF ADDITIONAL SESSIONS COURT(FAST TRACK COURT NO.III) MANJERI APPELLANT/ACCUSED:** ## **1 SUNDARAN (DIED) S/O. VELU,AGED 45 YEARS, KAKKULANGARA HOUSE, VAZHIKKADAVU, MALAPPURAM DISTRICT.** ## **ADDITIONAL APPELLANTS:** - **1.1 VALSALA,** **AGED 47 YEARS,W/O SUNDARAN, KAKKULANGARA HOUSE, NAROKKAVU, PALEMAD, NILAMBUR TALUK, MALAPPURAM DISTRICT.** - **1.2 SUBIN,** **AGED 29 YEARS,S/O SUNDARAN, KAKKULANGARA HOUSE, NAROKKAVU, PALEMAD, NILAMBUR TALUK, MALAPPURAM DISTRICT.** - **1.3 ABHILASH AGED 26 YEARS,S/O SUNDARAN, KAKKULANGARA HOUSE, NAROKKAVU, PALEMAD, NILAMBUR TALUK, MALAPPURAM DISTRICT.** - **1.4 KURUMBA,** **AGED 85 YEARS,W/O VELU, KAKKULANGARA HOUSE, NAROKKAVU, PALEMAD, NILAMBUR TALUK, MALAPPURAM DISTRICT. (ADDITIONAL APPELLANTS ARE IMPLEADED AS PER ORDER DATED 19/06/2019 IN CRL.MA.01/2019)** ## **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT/S:** ## **THE STATE OF KERALA** **EXCISE INSPECTOR, NILAMBUR EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **OTHER PRESENT:** **BY PUBLIC PROSECUTOR, SRI. SUMODH. P.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A.No.1454/2008** ## **-: 2 :-** Dated this the 6[th ] day of March,2020 ## J U D G M E N T The conviction and sentence for offence punishable under Section 8(2) of the Abkari Act, 1077(for short 'the Act') in S.C. No.121/2007 on the file of Additional Sessions Court, Fast Track No.III, (Ad hoc), Manjeri is challenged by the legal heirs of the appellant, who died during the pendency of the appeal. The additional appellants 1 to 4 are his wife, children and his mother. 2. The case against appellant was charge-sheeted by PW5, Excise Inspector,Nilambur Excise Range, on the allegation that he possessed 7.5 litres of illicit arrack in MO2 series three plastic Cans kept in MO1 plastic sack, containing 2.5 litres each 03.11.2005 at 1 pm, when it was found by the Excise party consisting of PWs 1 and 2, the Preventive Officer and Excise Guard respectively, in a private road in front of the house of one Surendran near Palemad Mosque within the jurisdiction limits of Nilambur Excise Range Office. ## **Crl.A.No.1454/2008** ## **-: 3 :-** 3. The prosecution case is that on obtaining reliable information given by PWs 3 and 4, who are the local persons that appellant was dealing with illicit arrack in the public place, the Excise party led by PW1, the Preventive Officer along with his subordinate PW2, came to the place at 1 pm, on 03.11.2005 and found the appellant being in possession of three plastic Cans concealed in a sack. The contents in the Cans were inspected in the presence of PW3 and 4, independent witnesses and after being satisfied that the liquor was arrack, three samples were taken in full in three bottles of 375 ml each and they were sealed and labelled in accordance with law. The appellant was immediately arrested at the spot itself. Evidencing the seizure, taking of sample and arrest of appellant, Ext.P2 seizure mahazar prepared by PW1. It was attested by PWs3 and 4 also. Evidencing the arrest of appellant, PW1 prepared Exts.P1 and P3 records. 4. PW1, thereafter, prepared Ext.P4 occurrence report and produced the appellant as well as the material objects incorporated in Ext.P5 property list **Crl.A.No.1454/2008** ## **-: 4 :-** before the Committal Court. The investigation of the case was taken over by PW5, the Excise Inspector and it is, who he filed the final report. The chemical report obtained from the laboratory, pursuant to Ext.P6 request for chemical analysis of the sample confirmed that the liquor was arrack. 5. On committal of the case before the Court of Sessions, Malappuram, it finally came for trial before the Additional Sessions Judge, Fast Track-III, Ad hoc, Manjeri, where the accused denied charge framed against him for offence punishable under Section 8(2) of the Act. 6. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P9 and MOs1 and 2 were marked. 7. While questioned under Section 313 of the Code of Criminal Procedure, 1973, the appellant submitted that he was falsely implicated and the material objects were not seized from his possession at all. He set up a defence that arrest was from a local market and not from the place of occurrence as alleged by the prosecution. He, however, did not **Crl.A.No.1454/2008** ## **-: 5 :-** adduce any evidence notwithstanding him being called upon to enter on defence. 8. The court below after appreciating the entire evidence on record found that the seizure of arrack from appellant as well as his arrest from the place of occurrence was proved by prosecution evidence. It noticed that there was no delay in production of the material objects before court so as to arouse suspicion on the reliability of search and seizure of contraband as well as the arrest of the appellant. In spite of PWs.3 and 4 having turned hostile also, the court below fell back upon the evidence of testimonies of official witnesses and came to the conclusion that the seizure of arrack from the possession of appellant was trustworthy. No illegalities were found by the court below with respect to the procedure for sampling or labelling and on the whole, the appellant's defence that his arrest was from a different place was found to be improbable. 9. I heard the learned counsel appearing for ## **Crl.A.No.1454/2008** ## **-: 6 :-** additional appellants as well as the learned Public Prosecutor. 10. It was contended before me that there was failure on the part of the court below in correctly appreciating the testimonies given by official witnesses and their evidence should have been approached with great suspicion, especially in the light of the hostile evidence of PWs3 and 4 at whose guidance, the alleged seizure of material objects was effected from the appellant. It was also pointed out that the correction made in Ext.P4 occurrence report by the author of the report in the description of samples alleged to have been collected from the plastic Cans was not taken due notice of the court below in appreciating the contention of the appellant that the seizure was not trustworthy. It is also one of the contentions that there was unexplained delay on the part of the Investigating Officer in completing investigation and it has affected the very reliability of the prosecution case and in this respect, a decision reported in Krishnan H v. State of Kerala [2015(1) KHC 822] was canvassed **Crl.A.No.1454/2008** ## **-: 7 :-** before me. Not much stress was made on the evidence given by PWs3 and 4, who testified in court that they were not in a position to identify the true offender from whom the contraband articles were recovered. 11. On the other hand, the learned Public Prosecutor sought to support the impugned order of conviction on the same reasonings recorded in impugned judgment. It was submitted that the circumstances when taken along with the testimonies of PWs 1 and 2, it was crystal clear that the contraband liquor was seized from appellant's possession and his arrest from the place of occurrence was nothing but suspicious. 12. After hearing both sides, I find that there was enormous delay in completing the investigation of the case and no explanation has been put forthwith by prosecution in this respect at all. The offence was detected as early as on 03.11.2005 but the final report was laid by PW5 only in the year 2007, after a long interval of hardly two years. I do not think that the delay could be overlooked, especially in the light of certain circumstances arising in the case as ## **Crl.A.No.1454/2008** ## **-: 8 :-** pointed out by the learned counsel for the additional appellants. 13. It is true that there was some correction made in Ext.P4, occurrence report with respect to the entries relating to marking on the labels affixed on sample bottles. This correction has not been explained by PW1, who is the author of Ext.P4. It may to be noticed that it was on the information given by PWs 3 and 4 that the Excise raid party claims to have come to the place of occurrence and seized contraband from the appellant. This is so recorded in Ext.P2, seizure mahazar itself. It is have ever seen that PWs 3 and 4 turned completely hostile to the prosecution as if the appellant was not the person from whose possession the contraband was seized. These witnesses, however, admitted having signed the mahazar but sought to explain that it was in their houses. The evidence of the independent witnesses hostile to prosecution, in my opinion, is sufficient to upset the very reliability of seizure sought to be proved in the ## **Crl.A.No.1454/2008** ## **-: 9 :-** case. It is this context, the defence contention that the arrest of appellant from a different place has to be appreciated. 14. On re-appreciating the testimonies given by official witnesses, in the light of unexplained delay on the part of the Investigating Officer, I find my way difficult to agree with the finding of the court below that the seizure of the contraband liquor from the possession of the accused was correct. 15. More over, this is a case where the appellant expired during the pendency of appeal leaving behind the additional appellants, his legal heirs to prosecute the appeal. In any view of the matter, so far as the sentence part of imprisonment is concerned, it is not executable at all. I was told that the additional appellants come from poor strata of the society and therefore, leniency was canvassed by the appellants in the matter of impugned sentence imposed by the court below. However, looking at the entirety of evidence as well ## **Crl.A.No.1454/2008** ## **-: 10 :-** as considering the broader aspects, I am of the opinion that there is reason to interfere with the impugned order of conviction and sentence and reverse the same. I hold that appellant is entitled to an order of absolution of the charge for offence punishable under Section 8(2) of the Act. In the result, appeal succeeds and setting aside the impugned judgment, the appellant is acquitted of the offence punishable under Section 8(2) of the Act. ## **Sd/-** ## T.V.ANILKUMAR,JUDGE DST //True copy// P.A.To Judge