Surendran and Rajan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935 CRL.A.No. 963 of 2004 (A) -------------------------AGAINST THE JUDGMENT IN SC 87/2001 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK - I, (ADHOC), MANJERI DATED 11-06-2004 APPELLANTS/ACCUSED: --------------------------- 1. SURENDRAN, S/O. CHOYI, POTTAMMAL HOUSE, VAZHAKKAD AMSOM, EDAVANNAPARA, CHEEDIKUZHI. 2. RAJAN, S/O. PERACHAN, ORALASSERI, VAZHAKKAD AMSOM, EDAVANNAPARA, CHEEDIKKUZHI. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE ADV.SRI.M.P.PRABHANANDAN ADV.SRI.SOJAN MICHEAL ADV.SRI.GILBERT GEORGE CORREYA RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.VIJU THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“C.R”** ## **HARUN-UL-RASHID, J. -----------------------Crl.Appeal No.963 Of 2004 ---------------------Dated this the 29[th] day of August, 2013.** ## **J U D G M E N T** The appellants are the accused in S.C.No.87/2001 on the file of the Additional District and Sessions Judge Fast Track (Adhoc) Court-I, Manjeri. The appeal is directed against the judgment dated 11.6.2004 in the sessions case. The accused stands charge sheeted under Section 55(a) of the Abkari Act. The court below found that the guilt of the accused is proved beyond reasonable doubt and are convicted. The accused are sentenced to undergo rigorous imprisonment for three years and to pay a fine of ` 1 Lakh each and in default of payment of fine to undergo simple imprisonment for one year. Parties hereinafter are referred to as arrayed in the sessions case. 2. The prosecution case is that at about 10:00 am on 6.6.1998 the accused were found transporting 35 litres of illicit arrack in a can through Areacode-Mukkam road, that the 2[nd] accused was driving the bike bearing Reg.No.KL-11(G)-4742, **::2::** ## **Crl.A.No.963 Of 2004** that the 1[st] accused was the pillion rider and that both accused are liable to be punished under Section 55(a) of the Abkari act. 3. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P9. MOs 1 to 3 were marked on the side of the prosecution. The accused were questioned under Section 313 Cr.P.C and their statements are duly recorded. They denied all incriminating circumstances appearing in the evidence. Exts.D1 & D2 were marked on the defence side. 4. PW1 is the then Sub Inspector of Police, Areacode Police Station. He testified before the court that while he was on duty of checking vehicles plying Areacode-Mukkam road along with police party around 10:00 am on 6.6.1998, they found the bike driven by A2 proceeding towards Vazhakkadu. The police party also found the pillion rider, who is A1, holding a jute bag. The bike was stopped as per the signal given by him and asked about the contents of the jute bag. On feeling suspicion the police party opened the bag and found a cannas containing liquor. On tasting and smelling they were convinced that the accused were transporting illicit liquor. The cannas was having **::3::** ## **Crl.A.No.963 Of 2004** capacity of 35 litres and at the time of seizure it was full. Accordingly, PW1 arrested the accused and seizure was effected. Three sample bottles were prepared and sealed. The cannas and jute bag were marked as MOs 1 & 2. The motor cycle had also been seized and produced before the court. It is said that labels were prepared and affixed on the sample bottles. Ext.P1 is the seizure mahazar. The First Information Report is marked as Ext.P2. Exts.P3 & P4 are the property list and forwarding note. Ext.P5 is the arrest memo. The court below found that 313 statement appears full of ambiguity regarding the story spoken by the accused before the court. The court below observed that they have not stated as to why they were inclined to transport a big can containing acetic acid since they had no business with Mathew. 5. According to the accused while they were proceeding, the motor cycle was stopped and one Mathew had entrusted a bag with them with an instruction that it should be delivered to the shop of one Usman. The court observed that there is no explanation as to why the accused were prepared to oblige the **::4::** ## **Crl.A.No.963 Of 2004** request of an unknown person to carry a big can, which is covered with a jute bag and that the alleged act of the accused does not appear to be a normal conduct. The court below found that the defence version does not appear to be impressive or believable. 6. The court below on evidence found that the documents, namely, P1, P2, P5, P7 & P8 prepared by PW1 at the time of seizure had reached the court on the very same day i.e., 6.6.1998 and that necessarily indicate that within few hours, articles and documents have reached the court leaving no reason to suspect the seizure and arrest. PW2 is one of the members of the police party and he was assisting PW1. He has corroborated the evidence of PW1. PW3 is one of the witnesses to the seizure mahazar, marked as Ext.P1. He has admitted his signature in Ext.P1. His contradictory version is marked as Ext.P7 and it stands proved through the investigating officer. The investigation was conducted by PW5. He has prepared the scene mahazar and it stands proved through PW4. PW5 is the police constable attached to the police station. Chemical examination report is **::5::** ## **Crl.A.No.963 Of 2004** marked as Ext.P9. It certified that the sample contained Ethyl Alcohol. On the basis of the oral evidence of PWs 1 to 6 and the documents marked as Exts.P1 to P9, the learned Judge found that the guilt of the accused is proved beyond reasonable doubt. 7. The detecting officer is the Sub Inspector of Police. The officer who investigated the crime is PW5 who is a head constable. PW6 is the Sub Inspector of Police who laid the charge. The materials objects are MO1 35 litre can, MO2 jute bag and MO3 sample bottle. PW1 testified before the court that after taking samples the accused was arrested and produced before the court with the documents. It has come out in evidence that the material objects are not produced before the court on 6.6.1998. The same was produced only on 12.6.1998. PW1 deposed before the court that the sample bottles were kept in the police station for one day. PW1 did not state about the custody of the bottles for the rest of the period till the same was produced before the court on 12.6.1998. Neither PW1 nor PW5 have no explanation for the belated production of MOs 1 to 3 before the court. PWs 1 to 5 when examined also did not offer **::6::** ## **Crl.A.No.963 Of 2004** any explanation for not producing the material objects before the court along with the documents on the date of incident or on the following days. 8. Ext.P9 chemical examination report is dated 3.12.1998. The final report was filed only on 5.10.2000. Even after receipt of chemical examination report in December, 1998, there was no explanation for not filing the final report within a reasonable time. The report was filed after one year and nine months. MOs 1 to 3 were produced on 12.6.1998. The date of occurrence was on 6.6.1998. The accused were produced before the Magistrate on the date of occurrence. The documents were also produced. It is not known why the MOs were not produced on the same day. Regarding the delay in producing the property a Division Bench of this Court in _**Ravi v. State of Kerala**_ (2011 (3) KLT 353) held that “ _there is no statutory mandate under the provision to “forthwith” produce the properties before the Court_ ”. Delayed production before court of the seized property is likely to be frowned upon by Courts because of the possible misuse or tempering with of such property while in the custody of the **::7::** ## **Crl.A.No.963 Of 2004** officer concerned. Thus the Division Bench has concluded that production of the property before the court without unreasonable delay is also a necessary requirement of law and that the delay in producing the property before the court by itself, cannot be fatal to the prosecution if the delay can be satisfactorily explained. Division Bench held that there should be explanation for the delay when there is delayed production of property. The Division Bench decision was followed by the learned Single Judge in the decision reported in _**Appukkuttan v. State of Kerala**_ (2013 KHC 2783). 9. The sample MOs were taken on 6.6.1998. This was kept in the police station on that day. Neither PW1 nor PW5 has stated that the samples were retained in the police station till 12.6.1998. The version of PW1 is that the material objects were kept in the police station till the following day. What happened to the samples from 7.6.1998 till 12.6.1998 and as to who was in custody of the samples during the said period is also not explained nor proved. There is no evidence whatsoever to prove that it is the sample drawn from the contraband, which reached **::8::** ## **Crl.A.No.963 Of 2004** the chemical examiner. The chemical examination report is dated 31.12.1998. The samples though received by the chemical examiner on 8.7.1998 it is seen that the testing was conducted belatedly. There is no evidence to prove that the sample was kept intact and was under safe custody during the period from 12.6.1998 till the sample was tested. Prosecution should have examined the thondi clerk to prove that the MOs were kept intact and was under safe custody. The thondi section clerk who was the custodian of the properties in the court, was not examined to prove matters such as the date of receipt of the property before the Magistrate, the condition in which those properties were received in court including the fact whether a sample bottle was received and if so, whether the seals if any on such bottle were intact, the date of despatch of the sample to the chemical examiner and the nature of the custody of the sample bottle until then. There is no acceptable material to show that the properties including the sample bottle had reached the chemical examiner with its seal intact. Prosecution can succeed in securing a conviction against the appellant only if it is shown that the **::9::** ## **Crl.A.No.963 Of 2004** sample which was subjected to chemical analysis as evidenced by Ext.P9 certificate was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly held by the accused and which after change of hands, eventually reached the hands of the chemical examiner. The learned counsel for the appellant also pointed out that MO1 35 litre can is found to be not sealed and 2[nd] sample produced before the court was found empty. 10. This Court in the decision reported in _**Rajan v. State of Kerala**_ (2013 (3) KLT 654) held as follows: _“It is not necessary that the articles seized under Section 34 of the Abkari Act should be produced before the Magistrate court “forthwith”, whereas, it would be sufficient if the records relating to the seizure were produced “forthwith” before the learned Magistrate. Wherever it is practicable, the contraband should also be produced along with the records itself and in case of delay in the production of the contraband, there should be explanation for the delay”._ Admittedly, in this case, the contraband items were not produced along with records relating to the seizure before the Magistrate. **::10::** ## **Crl.A.No.963 Of 2004** The contraband was produced after a delay of six days. No reasons are stated nor any explanation offered for the belated production of the contraband. The belated production of contraband vitiates the prosecution case. The head constable being not an abkari officer authorised under the Abkari Act is incompetent to detect, investigate or lay charge in relation to an abkari offence. Therefore, it is clear that the investigation conducted by the head constable in the present case is lacking jurisdiction which cuts at the root of the prosecution and the prosecution will not lie. 11. PW5 conducted investigation. He had prepared the scene mahazar. He is the person who had recorded Section 161 statement of the witnesses and obtained chemical examination report. A Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by a head constable who is not an abkari officer as defined under the Act. Illegality or irregularity in investigation is different from lack of power to initiate prosecution. A Division Bench of this court in _**Subhash v. State of Kerala**_ (2008 (2) KLT 1047) held that Section 50 of **::11::** ## **Crl.A.No.963 Of 2004** the Abkari Act says that as soon as investigation into the offence 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 subsection (2) of Section 173 Cr.P.C. It shows that the Magistrate can take cognizance only on the basis of a report by the Abkari Officer. Subsection (2) thus mandates that an Abkari Officer shall after investigation forward the report in accordance with the subsection (2) of Section 173 Cr.P.C. By a reading of Section 50 (2) it is clear that the Abkari Officer is the competent authority to file a final report after investigation. The authority entrusted under the Act to investigate the case is an Abkari Officer. In this case the Magistrate took cognizance of the offence under the Act on the basis of the investigation made by a head constable who is not an Abkari Officer as defined under the Act. Such an investigation is not intended by the statute and there is inherent lack of power of the Magistrate in initiating prosecution on the basis of an investigation conducted by a head constable. **::12::** ## **Crl.A.No.963 Of 2004** 12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 6.6.1998. Chemical examiner submitted report on 3.12.1998. The final report should have been submitted before the court immediately thereafter. It is seen that the final report was submitted only on 5.10.2000 i.e., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW6 took charge as the Sub Inspector of Police on 1.8.2000. Only thereafter, the final report was submitted on 5.10.2000. It is not known for what purpose the records were kept in the police station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentenced passed by the court below in the proved circumstances cannot be sustained. **::13::** ## **Crl.A.No.963 Of 2004** In the result, the appeal is allowed. The judgment passed by the court below is set aside. Accordingly, the appellant is acquitted of the offence under Section 55(a) of the Abkari Act. The bail bond, if any, executed by the appellant is cancelled and the appellant is set at liberty. **HARUN-UL-RASHID, Judge.** bkn/-