Valsala, Chandrika and Karuna v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 10TH DAY OF DECEMBER 2014 / 19TH AGRAHAYANA, 1936 **CRL.A.No. 842 of 2004** AGAINST THE JUDGMENT IN SC 66/2001 of THE COURT OF ADDL. DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC-II), KOZHIKODE DATED 26-04-2004 ## **APPELLANTS** /ACCUSED: 1 VALSALA, AGED 37 YEARS, W/O. KUNHIKANARAN, CHAMMIL MEETHAL HOUSE, KUNNATHARA AMSOM, KANNOOR DESOM, KOYILANDY TALUK,, KOZHIKODE. - 2 CHANDRIKA, AGED 41 YEARS, W/O.ASOKAN, CHAMMIL MEETHAL HOUSE, KUNNATHARA AMSOM, KANNOOR DESOM, KOYLANDY TALUK, KOZHIKODE. 3 KARUNA, W/O. KUNHIKANARAN, AGED 45, CHOYICHI NIVAS, PANTHALAYANI AMSOM,, KOTHAMANGALAM DESOM, KOYILANDY, KOZHIKODE. BY ADV.SRI.SANTHARAM.P ## **RESPONDENT** /COMPLAINANT:: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SMT.V.H.JASMINE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** -----------------------------Crl. Appeal No.842 of 2004 ------------------------------Dated 10[th] December, 2014 ## **JUDGMENT** This appeal is directed against the judgment in S.C.No.66 of 2001 on the files of the Court of Additional District and Sessions Judge Fast Track (Adhoc-II) Kozhikode. The appellants were tried for offences punishable under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. They were found guilty and convicted and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for six months each. The case of the prosecution is as follows:- On 10.2.1999 at 16.10 hours PW1 got a telephonic message to the effect that the appellants were transporting Indian Made Foreign Liquor (IMFL) for sale. Thereupon, the Police party proceeded to the place of occurrence and while proceeding through Bappankode - Anelakadav road they found the accused carrying big shoppers. Upon seeing the Police party accused Nos. 1 and 2 took their heels from there after abandoning the big shoppers and the 3[rd ] accused was intercepted. The Police party unsuccessfully chased accused Nos.1 and 2. Crl.A.No.842/2004 2 Thereupon, PW1 returned to the place of occurrence and arrested the 3[rd] accused under Ext.P3 arrest memo. Item Nos.1 & 3 in Ext.P1 seizure mahazar were seized from the 3[rd] accused. The big shoppers abandoned by accused Nos.1 and 2 were also seized. Item Nos.4 & 5 were found from the big shopper abandoned by the 2[nd] accused and item Nos.9 to 11 were found from the big shopper abandoned by the 1[st] accused. Altogether they seized 101 bottles of various brands of IMFL. The Police party reached the police station with the 3[rd] accused and contraband articles and thereupon Ext.P2 FIR was registered. The Assistant Sub Inspector of Police then attached to Quilandy Police Station conducted the investigation and he prepared Ext.P10 forwarding note for sending the samples for chemical examination and sent it along with the contraband liquid to the Court. The Chemical Examiner analysed the sample bottles forwarded for analysis and issued Ext.P11 chemical analysis report dated 29.11.1999. The report reads thus:- |<br> <br> <br> <br> <br> <br> <br> <br>|Item No<br>.<br> <br>1<br>2<br> <br>3<br>4<br>5<br>6<br> <br> 7<br> 8|percent<br> <br>36.71<br>36.72<br>36.72<br>36.72<br>35.97<br>35.97<br>35.97<br>35.97| |---|---|---| |Crl.A.No.842/2004<br>3<br> Item No<br>. <br>9<br> <br>10<br> 11<br> 12<br>|percent<br>33.85<br>33.85<br>33.85<br>33.85| |---|---| 2. The Sub Inspector of Police attached to the Police Station thereafter laid the final report. To prove the charge against the appellants the prosecution examined PWs 1 to 5 and got marked Exts.P1 to P11 besides identifying MOs 1 to 9. After the closure of the evidence of prosecution the appellants were examined under Section 313, Cr.P.C.. They denied all the incriminating circumstances put to them. Finding that the case is not a case of no evidence the trial court asked the appellants to enter on defence. Thereupon, they got examined as DWs1 to 3. The learned Sessions Judge on evaluation of the evidence adduced and consideration of the arguments advanced by both sides arrived at the conclusion that the prosecution had succeeded in establishing the guilt of the appellants and consequently, convicted them under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and convicted them as aforesaid. 3. I have heard the learned counsel for the appellants and the learned Public Prosecutor. 4. The learned counsel appearing for the appellants contended that the appellants are entitled to get an acquittal on the Crl.A.No.842/2004 4 ground that in this case admittedly, the investigation was conducted by an incompetent officer. It is submitted by the learned counsel that the evidence of PW1 would reveal that after the detection of the offence the investigation was entrusted with PW5 who was the then Assistant Sub Inspector of Police attached to Quilandy Police Station. Ext.P10 forwarding note also would reveal that it was forwarded by PW5. Thus, it is evident that though the offence was detected by a competent officer in terms of the definition of `Abkari Inspector' under the Abkari Act, the investigation was conducted by an incompetent officer. Section 4 of the Abkari Act empowered the Government of Kerala to authorise an officer to conduct the investigation as contemplated under the provisions of the Abkari Act. In exercise of the said power Government of Kerala had issued SRO No.321/96 dated 29.3.1996 appointing all police officers of and above the rank of `Sub Inspector of Police' to detect or investigate an offence contemplated under the provisions of the Abkari Act. Though the learned Public Prosecutor submitted that since the Assistant Sub Inspector of Police has also to discharge all the duties of Sub Inspector of Police it should be treated that he should also be an Abkari inspector for the purpose of the provisions under the Abkari Act I am not persuaded to accept the said contention in the light of the decision of this Court in **Sabu** v. **State of Kerala (2007 (4) KLT 169)** which was affirmed by a Crl.A.No.842/2004 5 Division Bench in **Subash** v. **State of Kerala (2008 (2) KLT 1047)** . In the decision in **Sabu's** case (supra) this Court held that the Assistant Sub Inspector of Police will not fall under the definition of `Abkari Inspector' empowered to detect and investigate an offence under the Abkari Act in the light of the Government order dated 29.3.1996. In the said circumstances, in the light of the oral testimony of PW1 to the effect that the investigation was entrusted with PW5, the then Assistant Sub Inspector of Police, Quilandy and also the indisputable fact that it was he who conducted the investigation and in the light of the decision referred (supra) the contention of the appellants that the investigation was conducted by an incompetent officer has to be accepted. Evidently, this crucial aspect was not at all considered seriously by the court below. The impact of an investigation conducted by an incompetent officer has been dealt with by this Court in **Sabu's** case (supra). 5. Another illegality is also infected this case. Going by the case of the prosecution the offence was detected on 10.2.1999 at 16.10 hours and the contraband articles were seized under Ext.P1 mahazar on that day itself. However, the samples along with contraband articles were produced before the court only on 2.6.1999. A perusal of the forwarding note would reveal that it was prepared on 2.6.1999. Evidently, there is further delay in the matter in sending the same to the Crl.A.No.842/2004 6 court and in fact, Ext.P10 would reveal that it reached the court only on 21.7.1999. Ext.P9 property list would reveal that it was prepared on 18.6.1999 and reached the court on the same day. Thus, it is evident that there is considerable delay in the matter of reporting the seizure of the contraband articles and also for the production of the said articles before the court. The learned counsel for the appellants contended that in the light of the decision of a Division Bench of this Court in **Ravi** v. **State of Kerala and Another (2011 (3) KHC 121)** though it is not mandatory to produce the articles seized forthwith before the Magistrate Court concerned the factum of seizure of such articles should be reported to the court forthwith. Further, it is submitted that going by the said decision the production of the property seized before the court should also take place without unnecessary delay with proper explanation for the delay. In this case, there occurred considerable delay viz., more than four months in the matter of reporting the seizure as also production of the contraband articles. The sole explanation furnished by PWs 1 and 5 was that the said delay, in the matter of reporting as also in the matter of production of contraband articles, had occurred owing to the fact that the Sub Inspector was deputed for law and order situation at Nadapuram. In the light of the decision in **Ravi's** case (supra) the learned Public Prosecutor contended that the explanation offered by PWs Crl.A.No.842/2004 7 1 and 5 would reveal that they have satisfactorily explained the delay and therefore, it cannot be treated as fatal to the prosecution. Per contra the learned counsel appearing for the appellants contended that in view of **Ravi's** case (supra) the non-reporting of seizure of contraband articles forthwith to the Magistrate's Court and the non-production of the articles without unnecessary delay coupled with the fact that the delay was not satisfactorily explained should go against the prosecution and as such the appellants are entitled to get acquittal on the aforesaid reasons as well. 6. The learned counsel for the appellants relied on certain authorities to lend support to the aforesaid contention. However, I do not think that this judgment should be burdened with more authorities in respect of a point settled by a Division Bench of this Court in **Ravi's** case (supra). In fact, in that case, the Division Bench considered the question whether the delay in producing the seized properties before the court is fatal to the prosecution on a reference and it was held that it is not necessary to produce the articles seized under Section 34 of the Abkari Act before the Magistrate forthwith and at the same time it was held therein that the seizure of contraband articles should be reported forthwith to the Court. As noticed hereinbefore, going by the evidence on record in this case though the offence alleged was detected on Crl.A.No.842/2004 8 10.2.1999 Ext.P9 property list was forwarded to the court belatedly and it reached the court only on 18.6.1999. The seized articles viz., the samples and the residue were produced before the court only on 2.6.1999. Evidently, there is a delay of about four months in the matter of production of the seized articles. As noticed hereinbefore, the only explanation offered by PWs 1 and 5 was that the Sub Inspector was on law and order duty at Nadapuram. That certainly cannot be treated as sufficient explanation for such an inordinate delay. In the light of the decision in **Ravi's** case (supra) I am inclined to accept the contention of the appellants that there was delay in the matter of reporting the seizure and there is unnecessary delay in the matter of production of property and that apart the delay of about four months was not satisfactorily explained. In the said circumstances, the said delay in the matter of reporting the seizure as also production of the seized articles are fatal to the prosecution. A careful scanning of the impugned judgment would reveal that this aspect was also not seriously considered by the trial court. 7. There cannot be any doubt with respect to the position that to bring conviction for an offence under Section 55(a) of the Abkari Act the prosecution has to establish that the samples drawn from the contraband articles allegedly seized from the accused reached the Crl.A.No.842/2004 9 chemical examiner in a tamper proof condition. For a successful discharge of the said obligation the prosecution has to show that the articles seized from the possession of the accused and the samples drawn from them were properly seized and labelled, they were in the safe custody and were intact and from there they reached the court in a tamper proof condition. In this case, as noticed hereinbefore, though the alleged seizure was on 10.2.1999 PW1 who detected the offence himself deposed to the effect that he made it available before PW5, the Investigating Officer only on 18.6.1999. As noticed hereinbefore, he himself deposed to the effect that he was on duty in order to maintain law and order situation at Nadapuram from 11.2.1999 onwards. In what manner the articles allegedly seized from the appellants and the samples taken were kept was not explained by PW1. During his examination what he has deposed was thus:- “മമതലമകള്‍ എനന്‍റെ custodyയയില്‍ സസൂകയിച്ച ശശേഷഷം ആദദൃദയിവസഷം ശകസശനന്വേഷണതയിനനായയി അശനന്വേഷണ ഉശദന്വേനാഗസ്ഥനന് കനാണയിച്ചമ നകനാടമതയിടമണന്. 18.6.99നന് മമതലമകള ശകനടതയയയശലകന് അയകനന ASIകന് ഞനന നകനടമതയടമണന്. 11-2-99നന് നനാദനാപമരതമ കലനാപഷം ഉണനായതയിനന തമടരരന് അവയിനട dutyകന് ശപനായതമ നകനാണനാണന് മമതലമകള്‍ ശകനാടതയിയയില്‍ ഹനാജരനാകനാന്‍ കനാലതനാമസഷം വരതന്. ഞനാന്‍ dutyകന് ശപനായയിരമര അവസരതയില്‍ മമതലമകള്‍ Sðഷനയനല property roomല ആണന് സസകയചയരമരതന്.” It is also to be noted that on being examined as PW1 the detecting officer had not deposed as to how the contraband articles as also the Crl.A.No.842/2004 10 samples were sealed. He deposed only to the effect that they were seized. It is not discernible from the oral testimony of PW1 whether he had affixed his personal seal. It is also to be noted that during cross examination he would admit thus:- “ ഇശപനാള്‍ ശകനാടതയിയയില്‍ ഉള്ള big shopperകളയില്‍ RRNWU നÒര . station എഴമതയിയ കടലനാസന് കനാണമരയിsæ ല്‍ ഉള്ള വദൃതനാകദൃതയിയയില്‍ ഉള്ള ഇലകളമനട design ഉള്ള സസീലനാണന് sampleല്‍ വച്ചതന്. ” മമതലമകളയില്‍ സസീല്‍ വച്ചയിsæ. In the light of the oral testimony of PW1 in that regard the delay as aforesaid is undoubtedly fatal to the prosecution. True that, under normal circumstances, if the evidence was appreciated by the court below and if the findings of the court below are nothing but a plausible view based on evidence this Court will not interfere with said findings. At the same time, in this case, it is evident that the aforementioned crucial aspects were not at all considered by the trial court. In such circumstances, I have no hesitation to hold that it is unsafe to enter conviction on the appellants based on the aforementioned evidence adduced by the prosecution in this case, in view of the lapses mentioned hereinbefore. As noticed hereinbefore, in this case, the crime was investigated by an incompetent officer and there is considerable delay in the matter of reporting the factum of seizure and also production of contraband articles before the court. Evidence of PW1 also would not be sufficient to presume that the contraband articles were kept in safe Crl.A.No.842/2004 11 custody. Taking into account all the aforesaid reasons the conviction entered against the appellants cannot be sustained. In view of the above discussion, this Criminal Appeal is allowed. The judgment of the Court of Additional District and Sessions Judge Fast Track (Adhoc-II) Kozhikode in S.C.No.66 of 2001 is set aside. The appellants are acquitted of all the charges levelled against them. The bail bonds executed by them will stand cancelled. Sd/C.T.RAVIKUMAR Judge TKS