Sundaran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 CRL.A.No. 1247 of 2005 --------------------------- AGAINST THE JUDGMENT IN SC 312/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, MANJERI DATED 13-07-2005 CP 25/2003 of JUDICIAL FIRST CLASS MAGISTRATE,NILAMBUR ## APPELLANT(S)/ACCUSED: ---------------------------------------- SUNDARAN, S/O.VELU, VAZHIKKADAVU AMSOM, NAROKKAVU DESOM, NILAMBUR TALUK. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = CRL.A.No. 1247 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 4[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)II, Manjeri, for the offence under Section 8(2)/ 8(1) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo rigorous imprisonment for one year. Challenging the conviction and sentence 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. CRA. 1247/2005 2 3. The prosecution case is briefly stated as follows: PW1, the Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Malappuram, and his party were on patrol at Narokkavu in Vazhikadavu Village, at about 5.45 p.m. on 22.9.1998. While so, the appellant was seen carrying two jerrycans in his hands. PW1 and his party soon went to him and on examining the jerrycans, it was found that both the 10 litre jerrycans contained full of arrack. Two other jerrycans containing 10 litres of arrack and 2½ litres of arrack respectively kept by the appellant were also detected. Therefore, PW1 arrested the appellant then and there. He has prepared Ext.P2 Arrest Memo for that purpose. He has also prepared and issued an Arrest Notice. The 4 jerrycans together contained about 32½ litres of arrack. PW1 seized those 4 jerrycans containing arrack under Ext.P1 Seizure Mahazar. The arrack contained in all the jerrycans were seen alike. Hence, PW1 has taken a CRA. 1247/2005 3 sample of 375 ml. of arrack in a 375 ml. bottle from one of the jerrycans containing 10 litres of arrack and sealed and labelled the same. All the 4 jerrycans containing arrack were also sealed and labelled. Thereafter, PW1 produced the appellant, properties and the records at the Excise Range Office, Nilambur. He has also prepared Ext.P3 Crime and Occurrence Report. Subsequently, on the next day, PW5, the Excise Inspector, Excise Range Office, Nilambur, registered Crime No.37 of 1998 of that Range Office. Ext.P4 is the Crime and Occurrence report thus prepared by PW5. He has produced the appellant along with the Remand Report and the case records including Forwarding Note before the court. CW15, the Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Malappuram, and CW16, the Circle Inspector of Excise, Excise Circle Office, Nilambur, conducted the investigation of the case. They have questioned some of the witnesses CRA. 1247/2005 4 and recorded their statements. PW6, the Circle Inspector of Excise, Excise Circle Office, Nilambur, has continued the investigation. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court, Nilambur. 4. The learned Magistrate, after complying with the necessary legal formalities, committed the case to the Court of Session, Manjeri, and, from there, it was made over to the Assistant Sessions Court, Manjeri. The Assistant Sessions Court, Manjeri, framed a charge against the appellant alleging the offence under Sections 55(a) and 8(2)/8(1) of the Abkari Act. The appellant pleaded not guilty of the charge. Later, the case was made over to the Additional Sessions Court(Adhoc)II, Manjeri. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P6 and MO.1 series and MO2 on their side. The appellant was CRA. 1247/2005 5 examined under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(2)/8(1) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(a) of the Abkari Act and hence acquitted him of that offence. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW1 and his party detected the offence on 22.9.1998 and produced the appellant with the contraband items and records at the Excise Range Office, Nilambur. Subsequently, on the next day, PW5 registered Crime No.37 of 1998 of that Range Office. Ext.P4 is the Crime and Occurrence Report thus prepared by PW5. CRA. 1247/2005 6 According to the prosecution, CWs.15 and 16 conducted investigation of the case. Later, PW6 has taken over the investigation of the case and completed the same and submitted the Final Report before the court. It can be seen from the records that many of the witnesses were questioned by the Investigating Officer either in 2002 or in 2003. The Final Report was submitted by PW6 before the court only on 28.3.2003. Therefore, the investigating agency has taken more than 4½ years for submitting the Final Report after the occurrence in this case. The delayed questioning of witnesses and the delayed submission of the Final Report before the court are writ large. What was the reason for such delayed investigation and delayed submission of the Final Report? No explanation has been offered by the prosecution through any of the official witnesses examined in this case. 6. Section 50 of the Abkari Act deals with investigation CRA. 1247/2005 7 and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a CRA. 1247/2005 8 report in accordance with Sub-section(2) of Section 173 of Cr.P.C. to the concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. No explanation was also offered for happening so. In the case on hand, the occurrence was on 22.9.1998. Ext.P6 Certificate of Chemical Analysis dated 18.2.1999 has been received by the court on 4.5.1999. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P6. But, the investigating agency has taken nearly 4 years for submitting the Final Report before the court after the receipt of Ext.P6 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala(2013(3)KHC 780).** 7. The right to a speedy trial is a constitutionally as CRA. 1247/2005 9 well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right of speedy trial has been infringed by the inordinate delay occurred in conducting the investigation of the case and submitting the Final Report before the court. The independent occurrence witnesses cited and examined in this case did not support the prosecution case. The Excise Officials, PW1 and PW4, supported the prosecution case. But, their evidence is not free from contradictions. When all these facts are considered, this Court is of the considered view that the appellant is entitled, at least, to the benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal. CRA. 1247/2005 10 9. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 8(2)/8(1) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S. To Judge CRA. 1247/2005 11