Veeraputhran @ Nellendurai v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **CRL.A.No.359 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 136/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA** **APPELLANT/ACCUSED NO.1:** **VEERAPUTHRAN @ NELLEDURAI, S/O.MAYANDY, WEST DIVISION, NYMAKAD ESTATE, K.D.H. VILLAGE, MUNNAR.** **BY ADVS. SRI.P.N.SUKUMARAN SRI.JAISON JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SRI D CHANDRASENAN -PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.359 OF 2007 2 ## **JUDGMENT** ## **Dated this the 8th day of October 2020** The 1[st] accused in SC No. 136/2005 on the files of the Additional Sessions Court (Adhoc)-II, Thodupuzha is the appellant. He challenges the judgment dated 21.02.2007 in the aforesaid case, in which he was found guilty for the offences under Section 55(a) and Section 8(2) of the Kerala Abkari Act, 1077 (for short the Act). He was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh Only), with a default sentence of 6 months for non-payment of fine under Section 55(a) of the Act. The learned Sessions Judge did not impose a separate sentence for the offence under Section 8(2) of the Act. The 2[nd] accused was acquitted by the Trial court. 2. The prosecution case was that on 11.02.2002 at 2.15 p.m, appellant was found possessing 625 litres of spirit in 18 cans in his Estate Quarters at Nemakkadu Estate. Since the spirit possessed by the appellant was alleged to have been given to him by the 2[nd] accused, the final report arraigned both accused as having committed offences under Section 55(a) and Section 8(2) of CRL.A.No.359 OF 2007 3 the Act. Thereafter the case was committed to the Sessions Court for trial. 3. In order to prove the prosecution case, they examined PWs 1 to 8 and marked Exts. P1 to P15(a), while the defence marked Exts. D1 to D3. A court witness was examined as CW1 and through him Exts. C1 to C4 were marked as court exhibits. 4. After analysing the facts of the case, the learned Sessions Judge ‘hesitatingly’ found the appellant guilty of the offences alleged and sentenced him as mentioned earlier, while the 2[nd] accused was acquitted. Aggrieved by the finding of guilt and the sentence imposed, this appeal is preferred. 5. I have heard the learned counsel Shri. Jaison Joseph as well as the learned Public Prosecutor Shri. D. Chandrasenan. 6. Adv.Shri. Jaison Joseph submitted that the prosecution case has to be thrown out solely on one point itself, which according to him, is sufficient to discard out the prosecution case in its entirety. In continuation of his submissions, the learned counsel referred to paragraph 16 of the impugned judgment and submitted that even though the learned Sessions Judge himself had found fault with the prosecution case, court erroneously convicted the appellant. CRL.A.No.359 OF 2007 4 According to the learned counsel, the decision in _**Sukumaran v. State of Kerala [2019 (3) KLT 920]**_ is relevant in the instant case. The learned counsel referred to the evidence adduced by PW7 as well as CW1 and Exhibit P8 property list and pointed out that there is nothing on record to show or justify the prosecution case of the seizure of the spirit on 11.02.2002. The learned counsel for the appellant submitted that the delay of 8 months in producing the alleged seized spirit before the court is extremely crucial and in the absence of any legally valid explanation, the said delay is detrimental to the prosecution case. He submitted that the delay from 11.02.2002 till 23.10.2002 is sufficient to prove the falsity of prosecution case. 7. The learned Public Prosecutor Shri.D. Chandrasenan on the contrary, submits that huge quantity of spirit was seized from the accused. He was found possessing 625 litres of spirit stored in 18 cans in his house which itself indicates that court must be slow to show, any leniency. According to him, the evidence of CW1 coupled with that of PW7 is sufficient to satisfy the prosecution case that though on 11.02.2002, the seized spirit was produced before the court it was returned, to be kept in safe custody of the Police due to certain inconveniences for such safe keep in court. The learned CRL.A.No.359 OF 2007 5 Prosecutor also invited my attention to Exts. C1 to C4 and submitted that those records will show that the court had ordered destruction of the spirit kept in the Police Station and that in Ext. C4, specific mention is made to destroy the spirit involved in this case (Crime No. 33/2002). It was argued that the facts and circumstances along with the evidence adduced in the case does not warrant any interference by this Court on the Judgment impugned. 8. I have considered the rival contentions. Even though, PWs 1 to 8 have been examined and Exhibits P1 to P15(a) have been marked and much earnestness have been shown at the prosecution stage in its attempt to prove the guilt of the accused, I have no hesitation to observe that the investigation in the case and the procedure adopted by the investigation team was highly unsatisfactory. 9. It is elementary in criminal jurisprudence that any article seized, ought to be reported to the Magistrate forthwith as per Section 102 of Cr.P.C. In cases under the Abkari Act, seizure of spirit or other contraband articles ought to be reported and produced without fail before the Magistrate and it cannot brook delay. In the absence of any proper explanation, in producing the CRL.A.No.359 OF 2007 6 seized article before court, the delay will cast doubt on the prosecution case. In **Ravi Vs. State of Kerala and Another** , **2011(3) KLT 353** , it was held that _“There is no statutory mandate under the above provision to forthwith produce the properties before the court. What is insisted on is that the seizure of the property should be forthwith reported to the court. But that does not mean that the detecting or Investigating Officer can produce the property leisurely, particularly when the nature and contents of the property can be convincingly established only through expert opinion obtained either in the form of chemical analysis or the report of a forensic or other expert for which the property should reach the court without unreasonable delay. Delayed production before court of the seized property (wherever it is practicable) is likely to be frowned upon by courts because of the possible misuse or tampering with of such property while in the custody of the officer concerned.”_ 10. The delay in the present case is not few days but, it runs into 8 months. Though the spirit was alleged to be seized on 11.02.2002, it is seen produced in court only on 23.10.2002. The explanation offered that when it was produced before the Magistrate's Court on 11.02.2002, it was returned due to the inconvenience of the court is not borne out by any record. It is CRL.A.No.359 OF 2007 7 impossible to believe that articles alleged to be involved in an offence under the Abkari Act, when produced before the Magistrate, was returned back to be kept in the Police Station and that too without even any record of such production before the court. Undoubtedly, the articles in question are those that require immediate forwarding to the chemical examiner for analysis and delay in forwarding such articles for examination could even defeat the prosecution case. 11. In order to verify the correctness of the prosecution case and their explanation for the delay, CW1 was examined. He was the property section clerk of the Devikulam Judicial First Class Magistrate’s Court. In his deposition he swears that he joined as property section clerk only on 28.05.2002. CW1 is thus not competent to depose about the alleged production of the seized spirit on 11.02.2002. Exhibits C1 to C4 also do not prove that the seized spirits were produced before the Magistrate on 11.02.2002. None of those documents indicate the production of the seized article on 11.02.2002. On the other hand, all those documents show the endorsement of the Magistrate's Court as 23.10.2002. 12. Even if it is assumed for argument sake that on 11.02.2002, the detecting officer had produced the spirit before CRL.A.No.359 OF 2007 8 the court and that it was returned back to be kept in safe custody to the Police Station, the subsequent production before court and forwarding it for chemical examination were carried out only after a gap of 8 months. There is nothing on record, not even a whisper, explaining that delay. The prosecution case therefore, becomes clearly doubtful. In _**Shri. Sukumaran vs. State of Kerala 2019 [3 KLT 920]**_ , this Court came to the conclusion that in the absence of any explanation for the delay of more than 7 months for producing the samples before the Court, the prosecution case cannot be upheld. It was held that _“prosecution has to further establish that the liquid seized was contraband liquor. When the prosecution relies upon report of chemical analysis in respect of this sample send for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid allegedly seized from the possession of the accused.”_ 13. In the instant case, the facts are almost similar. A delay of 8 months occurred in producing the seized liquid before court. No CRL.A.No.359 OF 2007 9 satisfactory explanation has been provided by the prosecution. The prosecution has miserably failed to prove its case, and the conviction and sentence imposed upon the appellant cannot be sustained. Appellant is liable to be acquitted. In the above circumstances, I set aside the conviction and sentence imposed upon the appellant by judgment dated 21.02.2007 in SC No.136/2005 on the files of the Additional Sessions Judge (Adhoc)-II, Thodupuzha. The appellant is found not guilty and he is acquitted. The bail bonds if any executed by the appellant are herewith cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. This criminal is allowed. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** SMF/08.10