Tomy @ Tomychan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** ## **CRL.A.No.2047 OF 2007** **AGAINST THE JUDGMENT IN SC 294/2003 DATED 24-03-2007 OF SESSIONS ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY** **CP 173/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUTHUPARAMBA** ## **APPELLANT/ACCUSED:** **TOMY @ TOMYCHAN, S/O. JOSEPH, MUTHALAPRA VEEDU, ATAKKATHODU, KELAKAM AMSOM.** ## **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR SRI.D. CHANDRASEKHAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2020, THE COURT ON 22-10-2020 DELIVERED THE FOLLOWING:** Crl.A.2047/2007 :2: ## **JUDGMENT** Appellant is the convict in SC No.294/2003 of the Additional Sessions Court-III, Thalassery. The allegation against the appellant precisely is that on 29.08.2001 at about 18:30 hours, CW1 Sub Inspector, Kelakam police station and party found the appellant on the canal bund lane in Adakkathodu - Valumukku area in Kelakam possessing and vending arrack. After intercepting him and seizing the contraband under a mahazar, Crime No.154/2001 was registered. The seizure and arrest were made in the presence of independent witnesses. On the basis of the final report laid by the Sub Inspector, CP No.173/2001 was taken on file by the Judicial First Class Magistrate, Kuthuparamba. After enquiry, since offence punishable under Section 8(2) of the Abkari Act was revealed, triable exclusively by the Court of Session, the learned Magistrate committed the case to the Sessions Court under Section 209 Cr.P.C., where the case was taken on file as SC No.294/2003. Then the case was made over to the trial court for trial and disposal. 2. The appellant was defended by a counsel of his choice. Crl.A.2047/2007 :3: After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty and claimed to be tried. He was on bail. 3. Prosecution examined four witnesses in its side as PWs 1 to 4 and Exts.P1 to P8 documents were marked. The material object was identified and marked as MO1. After closing prosecution evidence, when questioned under Section 313(1)(b) Cr.P.C., he denied all the incriminating materials and claimed innocent. As the learned Additional Sessions Judge felt that it is not a case warranting acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. However, no evidence was adduced. After hearing counsel on both sides and repelling the plea of innocence, by the impugned judgment, the learned Judge found him guilty under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for one month. That finding has been called in question before this Court under Section 374 of the Cr.P.C. 4. The only point arising for consideration is whether the Crl.A.2047/2007 :4: trial court is justified in convicting and sentencing the appellant under Section 8(2) of the Abkari Act. 5. I heard the learned counsel for the appellant as also the learned Public Prosecutor. The trial court records were summoned and examined. 6. The learned counsel for the appellant argued that even though the incident had happened within Kelakam police station limits in Kannur district, investigation was conducted and the charge sheet was laid by the Sub Inspector, Peravoor police station, who had no jurisdiction or authority over the place of occurrence in question. Secondly, it was argued that the incident had happened on 29.08.2001, but material objects including samples were produced before court only on 04.09.2001, after seven days. Similarly, he pointed out that the independent occurrence witnesses have turned hostile to the prosecution and the finding regarding the culpability of the appellant was arrived at by the court on the solitary evidence of PW3, which is bad. Similarly, there is no consistency as to the place of occurrence; varied statements have appeared in evidence as to whether it is a canal Crl.A.2047/2007 :5: bund or a pathway. According to the learned counsel, all these aspects are highly fatal and capable of doubting the veracity of the prosecution case. 7. PW3 Sub Inspector Ramadasan is the detecting officer. According to him, on 29.08.2001, on getting reliable information about illegal vending of arrack at Adakkathodu area, himself and party proceeded to the place, at 18:30 hours at the canal bund, by the side of the property of one Mathai, the appellant was found standing on the pathway holding a can; seeing the police party he attempted to run, but was intercepted. When the can was opened and its content was tested, it was found full of arrack. Thus, in the presence of independent witnesses and after preparing the Ext.P1 mahazar, the appellant was arrested. The appellant carried five litres of arrack with him. He collected two samples from the contraband. After reaching back to police station Crime No.154/2001 was registered under Section 8(2) of the Abkari Act against the appellant; on the next day he was produced before court. The material objects were produced before court on 06.09.2001 through Ext.P5 list. He claimed that till Crl.A.2047/2007 :6: the item was produced in court it was in his custody. He also proved the forwarding note, marked as Ext.P6, and the chemical examination report, Ext.P7. According to him, the crime was investigated by the S.I. Peravoor, as directed by the Circle Inspector, Peravoor. 8. PWs 1 and 2 are independent occurrence witnesses who attested the Ext.P1 seizure mahazar. Both have admitted their signatures found in Ext.P1, however, denied having witnessed the occurrence or signed a mahazar prepared in connection with the seizure of arrack from the appellant. Both of them have stated that they were signing on blank papers at the instance of the police. They also denied having questioned by the investigating officer. In the light of the above statements, both were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. 9. PW4 is the then Sub Inspector of Peravoor police station. According to him, as directed by the Circle Inspector, Peravoor, he investigated Crime 154/2001 of Kelakam police station, prepared Ext.P8 scene mahazar and laid the final report. The samples collected from the appellant were sent for chemical examination report, which Crl.A.2047/2007 :7: led to the issue of Ext.P7 report stating that the seals on the bottles were intact, found tallying with the sample seal provided and that the items contained 29.71 and 29.63 percentage by volume of ethyl alcohol, respectively. 10. The above being the summary of prosecution evidence, the question to be determined is whether there is substance in the contentions of the learned counsel to doubt the correctness of the finding of the trial Judge. After examining the materials on record, this Court is convinced that there is merit in the first two arguments raised by the learned counsel for the appellant. There is no dispute that the alleged offence was committed at a place by name Valumukku, within the territorial limits of Kelakam police station, where the crime was registered. The offence was detected by PW3 the Sub Inspector of Kelakam police station. However, the case was investigated by PW4 the then Sub Inspector of Peravoor police station. PW4 claimed that he had acted as directed by the Circle Inspector, Peravoor. We do not know whether both Kelakam and Peravoor police stations fall within the same police circle, under the Crl.A.2047/2007 :8: jurisdiction of the Circle Inspector, Peravoor. Even assuming that it is so, the Sub Inspector, Peravoor police station has no competency to investigate a crime committed within Kelakam police station limits. Section 3(2) of the Abkari Act defines an Abkari officer meaning the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. Powers under Sections 4 and 5 of the Abkari Act can be exercised only by the Government or under the rules framed by the Government. It is not known as to how the Circle Inspector of Police, Peravoor could usurp the powers of the Government and invest jurisdiction on the Sub Inspector, which is alien to the statutory mandate. Even though such an argument has not been raised in the appeal memorandum, it being a question of law, the learned counsel cannot be faulted for raising it for the first time before this Court. 11. This Court, in a catena of decisions, has reiterated that only Abkari officers on whom both power and jurisdiction are vested can file a final report. A final report laid by an officer having no territorial jurisdiction is illegal and cognizance taken or trial Crl.A.2047/2007 :9: conducted pursuant to such a final report is _non est_ and illegal. It is a matter going to the very root of the matter. (See the decisions reported in _A.N.Rajan v. State of Kerala [2014 (3) KLJ 720], Haridas v. State of Kerala [2015 (1) KLT 958],_ etc.). In **Kunhanna Poojari v. State of Kerala [2019 (4) KHC 292]** , it has been made succinctly clear that a Circle Inspector of police has no authority to delegate investigation to another officer, the power of delegation can be made only by the Government under Section 4(g) of the Abkari Act. 12. The second argument that there is delay of seven days in producing the material object in court also is really serious and could not be explained by the learned Public Prosecutor. The offence was detected on 29.08.2001 whereas the items were produced before court on 06.09.2001, on the seventh day of the occurrence. PW3 has stated that, until then, it was kept in his safe custody. The correctness of this statement has been disputed by the appellant. After going through the materials on record, I find considerable force in the argument of the learned counsel. Defence is not entitled to challenge every delay occurred in producing the material objects before court. Going by Crl.A.2047/2007 :10: Section 102(3) of the Cr.P.C., every police officer acting under subsection (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court or where there is difficulty in securing proper accommodation for custody of such property or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. In other words, the detecting officer is bound to report the seizure to the court forthwith and is entitled to retain the same only in certain contingencies. Here, such a contingency does not exist. The material object is a jerrycan of 5 litres and two bottles containing samples. Of course, the materials produced by the prosecution indicate that seizure of the item was reported to the court on the following day itself. But the samples and the contraband were transmitted to the court only on 06.09.2001. The excuse tendered by Crl.A.2047/2007 :11: the Sub Inspector is that he was under pressure of work, meanwhile, it was kept in his safe custody. 13. In my assessment, both the explanations are far fetched. Firstly, it has come out that the appellant was produced before court on 30.08.2001, on the following day itself and was remanded to judicial custody. It is not known as to what was the difficulty in producing the material objects also before court, that day. The version that there was pressure of work does not stand to reason. After all, for taking the items to court involved only the preparation of a list of properties in the prescribed form, signed by the Station House Officer. In fact, Ext.P5 document reveals that, that part of the job was completed on 30.08.2001 itself, since Ext.P5 bears dated signature of the Sub Inspector. 14. Secondly and more importantly, it is for the prosecution to say convincingly that, meanwhile, the material objects were kept in the safe custody of the detecting officer or some other responsible officer. That has not been attempted. On the other hand, there is only a bald statement that it was kept in his safe custody. In the nature of Crl.A.2047/2007 :12: the working of a police station it cannot be believed, unless overwhelming materials are made available, to say that such an item was upkept by him without being accessed by other Station House Officers who held charge of the police station from time to time, or others during the entire period of seven days. The credibility of Ext.P7 report depends upon the fact that the samples were kept in a most safe, tamper-free condition. It is the settled proposition that there must be correlation between the sample and the chemical examination report, which is the backbone of the opinion formed in filing the final report, for indicting the appellant. But such a document cannot be placed implicit reliance since the items were produced only on the seventh day of seizure without any explanation for the delay, that too without convincing materials on its safe custody. 15. The other two grounds urged in support of the appeal are not convincing or satisfactory. In my reading there is no doubt regarding the place of occurrence which is found to be the canal bund which is being used as a pathway. The fact that the independent witnesses had turned hostile to the prosecution also is not unusual and Crl.A.2047/2007 :13: there is absolutely nothing to go by the solitary evidence of PW3 who has no reason for giving a false testimony against the appellant. At the same time, having regard to the two reasons stated supra, the prosecution cannot said to have proved the case against the appellant. The two reasons stated above are sufficient to displace the prosecution case. Consequently, the appellant is entitled to get an acquittal. Point is found in favour of the appellant. In reversal of the finding of conviction he is found not guilty and acquitted under Section 386(b)(i) Cr.P.C. He shall be set at liberty, cancelling the bail bond. Fine amount, if any, realised shall be refunded. Appeal is allowed as above. Sd/- **K.HARIPAL JUDGE** okb/21.10.2020 //True copy// P.S. to Judge