IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938
CRL.A.No. 1374 of 2006 (F)
------------------------------AGAINST THE JUDGMENT IN SC 446/2005 of ADDL. SESSIONS COURT, THODUPUZHA DATED 12-06-2006 ---------
APPELLANT/ACCUSED:: -------------------------SUNNY, S/O. MATHAI, CHANJAPLACKAL HOUSE, ERUMALAKAPPU KARA KONNATHADY VILLAGE.
BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA
RESPONDENT/COMPLAINANT::
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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR MS.LISHA M.G.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **BABU MATHEW P. JOSEPH, J.**
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Crl. Appeal No.1374 of 2006
-----------------------------------------------Dated this the 21[st] day of March, 2016
## **JUDGMENT**
1. kThe appellant was convicted by the Additional Sessions Court, Thodupuzha, for the offence under Section 55(g) of the Abkari Act. He was sentenced to undergo simple imprisonment for four years and to pay a fine of 1 lakh₹ and, in default of payment of fine, to undergo simple 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.
3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Vellathooval, and his party were on patrol at about 3.30 p.m. on 04-08-2003. When they reached Erumalakappu, PW1 received reliable information
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that the appellant was manufacturing arrack in his house. Therefore, after preparing and sending Ext.P1 Search Memorandum to the court, PW1 and his party reached that house when the appellant ran away from there. PW1 and his party, in the presence of witnesses, entered into that house and searched there. During the search wash and different vessels and utensils used for manufacturing arrack were found in the kitchen and the bedroom of that house. PW1 had drawn two samples of 750 ml. each of wash in two 750 ml. bottles from the bulk contained in an aluminium vessel. Similarly, he had drawn two samples of 750 ml. each of wash in two 750 ml. bottles from the bulk contained in a jar. The samples so taken were sealed by PW1. The vessels, utensils etc., seen there were seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached Vellathooval Police Station with the properties and the records. PW1 registered Crime No.179 of 2003 of that Police Station in respect of the occurrence. Ext.P3 is the F.I.R. thus drawn by PW1. He had produced the
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properties and the records before the Judicial First Class Magistrate's Court, Adimali, on the next day. Ext.P4 is the List of property. Ext.P5 is a copy of the Forwarding Note. He had conducted the investigation of the case. During the course of investigation, he had arrested the appellant from his house on 11-10-2003 preparing Ext.P6 Arrest Memo. Ext.P7 is the Inspection Memo. Ext.P11 is an Ownership Certificate. PW1 had questioned the witnesses and recorded their statements. Subsequently, the investigation had been continued by PW7, the Sub Inspector of Police, Vellathooval Police Station. He had submitted Ext.P13 Report in respect of the house of the appellant before the court. Ext.P14 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW7 had completed the investigation and submitted the Final Report before the court.
4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over
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to the Additional Sessions Court, Thodupuzha. The court below framed a charge against the appellant alleging the offence under Section 55(g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P14 and M.O.1 series to M.O.8 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all 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 55(g) of the Abkari Act and convicted him thereunder. 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. It is the prosecution case that the appellant was found manufacturing arrack at about 3.30 p.m. on 04-08-2003 in his house. When PW1 and his party reached that house for searching the same, the appellant ran away from that house.
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During the search there, PW1 seized various properties including contraband items under Ext.P2 Seizure Mahazar in the presence of witnesses. But, the properties including the contraband items and their samples reached the court only on 07-08-2003 as evident from Ext.P4 List of Property. There is no dispute with regard to the fact that the properties were produced before the court only on 07-08-2003. PW1, while he was in the witness box, did not offer any valid explanation for the delay that occurred in producing the properties before the court. He simply stated that the properties were under his custody till they were produced before the court. He has not even stated that they were under his safe custody during that period. The statement so made by PW1 is no explanation for the non-production of the properties before the court without occurring any delay. Moreover, PW1 himself has produced some of the records of the case before the court on 05-08-2003. In fact, there is no valid explanation for the delay that occurred in producing the properties before the court. A Division Bench of this
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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, PW1 did not offer any valid reason for the delay that occurred in producing the properties before the court. Therefore, the unexplained inordinate delay that 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.
6. Where the properties were kept after they were seized by PW1 on 04-08-2003 and till they were produced before the court on 07-08-2003? No evidence is available. PW1 does not have a case that they were under his proper custody during that period. He simply stated that the properties were under his custody. In **Narayani v. Excise**
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**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 13.9.98 (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 tampering with the sample taken and the residue seized cannot be ruled out. ..........”
Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant.
7. PW1 is the Detecting Officer. He deposed before the court in support of the case of the prosecution. PWs.2 to 4 were cited and examined as independent witness for proving the prosecution version of occurrence. They have not supported the prosecution version of occurrence. Their evidence is of no use for the prosecution for proving their case. PW1 identified the appellant before the court. He had no case in Ext.P2 Seizure Mahazar that the appellant was
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personally known to him. In such a circumstance, without identifying the appellant during the course of investigation, a mere identification by PW1 before the court cannot be accepted as a legal identification of the appellant. PW7, who continued the investigation after PW1, had not stated before the court as to how could he identify the appellant as the accused. On considering the entire evidence on record, this Court is of the view that the identification of the appellant by PW1 before the court cannot be accepted as a legal identification. Moreover, purely based on the evidence of PW1, the Detecting Officer, it is unsafe to convict the appellant for a serious offence under Section 55(g) of the Abkari Act. For all the facts and reasons stated in this judgment, the appellant, at least, is entitled 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 of the offence under Section 55(g) of the Abkari Act.
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9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 55(g) 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**
kns/-
//TRUE COPY//
P.A. TO JUDGE
