Suresh Babu v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 4TH DAY OF DECEMBER 2015/13TH AGRAHAYANA, 1937 CRL.A.No. 497 of 2006 ( ) --------------------AGAINST THE JUDGMENT IN SC 480/2004 of ADDITIONAL SESSIONS COURT FAST TRACK-I, PALAKKAD. APPELLANT(S)/ACCUSED: --------------------- SURESH BABU, S/O.PADMAKOMALAM, 148(A)RLY. QUARTERS, RAILWAY COLONY, PALAKKAD, (NOW RESIDING AT CHALIRKADU VEEDU, NAMBULLIPURA.P.O MUNDUR, PALAKKAD. BY ADVS.SRI.P.VIJAYA BHANU (SR) SRI.P.M.RAFIQ ## RESPONDENT(S)/COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - Crl.Appeal. No. 497 of 2006 - - - - - - - - - - - - - - - - - Dated this the 4[th] day of December, 2015. ## JUDGMENT The accused was prosecuted for the offence punishable under Section 55(a) of the Abkari Act. He was found guilty. Consequently, he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for three months. 2. The incident occurred on 11.1.2002. On that day, P.Ws. 1 and 2 along with other officers were on patrol duty and when they reached the junction leading to Kattambalam, they happened to see an autorickshaw driven by the accused coming along with contraband article. Two cans of 5 litre capacity were seized from the autorickshaw, a total quantity of 10 litres of liquid was seized. The liquid was identified as arrack. Sample was taken from each of the cans 2 Crl.Appeal.497/2006. and numbered as A1 and B1 and the balance quantity with the seized cans were labelled as A2 and B2. The sample bottle and the cans were sealed and labelled and on the label the signature of the accused was obtained. Ext.P1 mahazar was prepared at the place of occurrence itself. The search list prepared is Ext.P3. P.W.1 also seized the driving licence of the accused, photocopy of the same is marked as Ext.P4. They returned to the station on the basis of the records available and registered crime as per Ext.P5 occurrence report. On 15.1.2002 the contraband articles were produced before court. P.W.1 says that he had preferred the forwarding note which is marked as Ext.P6 and obtained Ext.P7 chemical analysis report. Autorickshaw was produced before the Assistant Excise Commissioner. 3. Investigation was conducted by P.W.5. He recorded statements of witnesses, completed investigation and laid charge before court. Crl.Appeal.497/2006. 3 4. The court, before which final report was laid, took cognizance of the offence. Finding that the offence is exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Palakkad. The said court made over the case to Additional Sessions Court Fast Track-I, Palakkad for trial and disposal. 5. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Section 55(a) of the Abkari Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 5 examined and had Exts.P1 to P7 marked. M.O.1 series were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him. He denied having committed any act which would constitute and offence. Finding that the accused could Crl.Appeal.497/2006. 4 not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. Based on the evidence of P.Ws. 1 and 2 and also the contemporaneous document Ext.P1, the search list Ext.P3 and also the fact that the accused was produced before the learned Magistrate, the court below formed the opinion that the prosecution has succeeded in establishing the case against the accused. Conviction and sentence as already mentioned followed. 6. Learned counsel appearing for the appellant assailed the finding of the court below by pointing out that conviction is based on the parrot like version of P.Ws. 1 and 2. It is significant to notice that two independent witnesses turned hostile. Attention was drawn to the evidence of P.W.1 wherein it is stated by him that M.O.1 series of cans contained the label bearing the date 3.11.2000. Learned counsel pointed out that P.W.1 then says that he had put the correct Crl.Appeal.497/2006. 5 date. Probably the Guard who wrote under his instructions had made the mistake. Learned counsel pointed out that this explanation offered is unsatisfactory and the court below was in error in accepting the said contention especially when the person who had written the date '3.11.2000' ought to have been examined and if that is to be treated as true, then obviously, the cans produced before the court below are not the cans seized from the possession of the accused. 7. Apart from the above fact, learned counsel pointed out that the detection of the offence was on 11.1.2002 and the properties were produced only on 15.1.2002. No explanation is offered for the delay in producing the properties before court. Relying on the decision reported in Ramankutty v. Excise Inspector, Chelannur Range (2013 (3) KHC 308), it is contended that even a day's delay is fatal unless satisfactory explanation is offered. In the case on hand, the delay is of four days and since the delay has not 6 Crl.Appeal.497/2006. been properly explained, it is fatal to the prosecution. 8. Learned Public Prosecutor on the other hand contended that evidence of P.Ws. 1 and 2 taken along with various records clearly establish the case of the accused. There is nothing to show that excise officers had an axe to grind against the accused or had any reason to falsely implicate the accused. It is also pointed out that the court below was impressed by the evidence of the witnesses and unless it is shown that the court below has taken into consideration irrelevant aspects or relevant factors have been omitted to be taken note of, there is no reason as to why this Court should interfere with the conviction and sentence. Contending that there is no reason to interfere with the finding of the court below, learned Public Prosecutor prayed for a dismissal of the appeal. 9. If one is to simply go by the evidence of P.Ws. 1 and 2, of course, seizure is proved. P.W.1 was the Excise 7 Crl.Appeal.497/2006. Inspector at the relevant time and P.W.2 was the Assistant Excise Inspector of the Range. While they were on patrol duty, when they reached the junction leading to Kattambalam, they saw the autorickshaw driven by the accused coming along the way. The autorickshaw was intercepted and on verification it was found to contain two cans containing 10 litres of arrack. The autorickshaw was seized and the accused was arrested at the spot. Both P.Ws. 1 and 2 identified the article seized as M.O.1 series. 10. Of course, P.W.1 speaks in detail about the sampling done and affixture of label containing the signature of the accused. He then speaks about having returned to the office and registered crime as per Ext.P5 occurrence report. He also says about having sent the forwarding note and also that he produced the vehicle before the Assistant Excise Commissioner for further proceedings. Crl.Appeal.497/2006. 8 11. Even though P.Ws. 1 and 2 were cross-examined at length, there is nothing to show that they are giving false statements. 12. The evidence of P.Ws. 1 and 2 gets sufficient corroboration from Ext.P1 mahazar. The question is whether the above items of evidence is sufficient to show that the accused are guilty of the offence. It is here that the anomaly in their evidence and the statements in Ext.P1 assumes significance. In the mahazar and in the evidence of P.W.1, he had stated that the cans were numbered as A2 and B2. But at the time of deposition before court neither P.W.1 nor P.W.2 was able to locate any number as A2 and B2 and in fact the cans contained the label showing the date and time as '3-11-00/5.45 p.m.'. Of course P.W.1 has stated that it is a mistake committed by the Guard who was acting under the instructions of P.W.1 and that he had shown the correct date. The explanation so given cannot be accepted in the absence of Crl.Appeal.497/2006. 9 the examination of the person who had actually written the date on the label. Mere assertion by P.W.1 that it is only a mistake cannot be accepted. 13. Therefore, there is considerable doubt that the cans produced before court are the cans actually seized from the possession of the accused. 14. Evidence regarding detection is formidable. P.W.1 is the detecting officer and according to him, he had kept the article in his custody till he produced it on 15.1.2002. Even though the Division Bench of this Court interpreted the word 'forthwith' occurring in Section 102(3) of Cr.P.C., it did not say that the officer concerned can produce the properties before court at his will and pleasure. If there is any delay, it has to be properly explained. In the case on hand, except saying that he had kept the custody of the articles, no other reason as to why the property has been retained by him was given. Crl.Appeal.497/2006. 10 15. A very disturbing fact has come to the notice of this Court while going through the records. The communication dated 25.8.2005 by JFCM-II, Palakkad addressed to Additional Sessions Judge, Fast Track Court No.I, Palakkad shows that two samples are being forwarded to that court. Surprisingly enough, that communication made mention of the two samples A and B, which, according to the communication, are being forwarded to the Sessions Court. This is understandable because the chemical analysis report is dated 5.2.2004. Obviously the sample must have reached the laboratory much before that. If that be so, one fails to understand how, by virtue of the communication referred to above, two samples could have been forwarded to the Sessions Court. According to the prosecution, the two samples taken from the contraband article seized from the possession of the accused were already sent for chemical analysis and report was also obtained. Crl.Appeal.497/2006. 11 16. These aspects have not been considered by the court below and the court below was carried away by the evidence of P.Ws. 1 and 2, which is of course consistent and cogent. But as already noticed, sufficient safeguards are to be taken before producing the article before court. 17. In the light of the anomalies pointed out, this Court is unable to uphold the conviction and sentence imposed on the accused for the offence under Section 55(a) of the Abkari Act. One fact also may be noticed at this juncture. Conviction for the offence under Section 55(a) of the Abkari Act is misconceived and the provision should have been for the offence punishable under Section 8(1) of the Abkari Act. However, it is only a matter with academic interest. For the above reasons, this appeal is allowed, the conviction and sentence passed by the trial court are set aside and it is held that the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. 12 Crl.Appeal.497/2006. The accused is acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty. P. BHAVADASAN, JUDGE sb.