Vikraman v. State of Kerala

1 Crl.Appeal No.1542/2005 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **CRL.A.No.1542 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 379/2001 DATED 19-08-2005 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) FAST TRACK, MAVELIKKARA** ## **APPELLANT/ACCUSED:** **VIKRAMAN** **S/O KOCHUNANU, SREE VAISHNAVAM, PELA MURI, KANNAMANGALAM VILLAGE,, FROM MEENATHETHIL, PELA MURI,, KANNAMANGALAM.** **BY ADV. VIKRAMAN (PARTY IN PERSON)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SMT.MAYA.M.N., PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1542/2005 ## **JUDGMENT** ## **Dated this the 25th day of September, 2020** The appellant is the accused in S.C. No. 379/2001 on the file of the Additional District and Sessions Judge, (Adhoc), Fast Track, Mavelikkara. The above appeal is filed against the conviction and sentence imposed on the appellant in the above case. 2. The prosecution case is that on 11.2.2000 at 6.30 p.m., the S.I. Of Mavelikkara Police Station while on patrol duty reached at Kannamangalam village. At that time, the accused was found in possession of 5 ½ litres of illicit arrack in three bottles of 1 ½ litres bottle and one bottle of one litre for sale. Hence it is alleged that the accused committed the offences. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P4 are the exhibits marked on the side of prosecution. M.O.1 to M.O.3 are the material objects marked by the prosecution. After going through the evidence and documents in this 3 Crl.Appeal No.1542/2005 case, the trial court found that the accused committed the offence under Section 55 (a) and Section 8 (1) & (2) of the Kerala Abkari Act. Accordingly, the accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of one year. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 4. Heard. 5. The point for consideration in this case is whether the accused committed the offences under Section 55(a) and Section 8 (1) & (2) of the Abkari Act. 6. In this case, PW5 the Assistant Sub Inspector conducted the investigation and submitted the final report. It is now a settled position that the Assistant Sub Inspector is not competent to file final report in Abkari cases. 7. In this case, the part of the investigation was conducted by PW6, the Assistant Sub Inspector of Police. Whether the Assistant Sub Inspector is authorised to conduct investigation in an abkari case was considered by this Court in several judgments. In **Omana v. State of Kerala (2015 KHC 1000)** , it is held that if detection, arrest, seizure and investigation in an abkari case is conducted by the 4 Crl.Appeal No.1542/2005 ## Assistant Sub Inspector, the same will vitiate the trial. Relevant portion of the judgment is extracted hereunder: _“14. Further in this case it is seen from the evidence that the detection, arrest, seizure and investigation etc, were done by the Assistant Sub Inspector of Police who is not an Abkari Officer empowered to arrest and effect seizure and conduct investigation under S.34 of the Abkari Act. The Assistant Sub Inspectors of Police were not authorised as Abkari Officers to exercise the powers of Abkari Officer under the Act. The Court below had come to the conclusion that since the Assistant Sub Inspectors were also vested with the power under S.4 and S.5 of the Abkari Act, though they are not covered by the notification they can detect and arrest and effect seizure in Abkari offences. But that was found to be not correct in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157), in which it was observed that the Assistant Sub Inspector of Police is not an authorised officer empowered to detect and investigate an offence under the Abkari Act as he was not covered by the notifications issued by the Government in this regard, viz, SRO 321/1996. Further in this case there is no document produced on the side of the prosecution to prove that PW5 was in charge of the Police Station in the absence of PW6, getting the powers of the Station House Officer to detect the crime. Such an evidence is also not available in this case. Further the dictum laid down in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 :2007(3) KLJ 157] was approved by the Division Bench of this Court in Subash v. State of Kerala [2008(2) KHC 703 : 2008(2) KLT 1047 : 2008(2) KLD 67]._ 5 Crl.Appeal No.1542/2005 _So merely because the investigation was verified and final report was filed by PW6 the Abkari Officer will not validate the act of seizure and arrest made by PW5 the Assistant Sub Inspector of Police who is not an Abkari Officer and as such no conviction can be based on such arrest and seizure. If seizure is found to be done by a person who is not to empowered to effect seizure, then the seizure is bad in law, and no conviction can be based on such seizure made by an incompetent person.”_ The same point was considered by this Court in **Subash v.State of Kerala (2008(2) KHC 703), Biju and others v. State of Kerala (2011(1) KHC 518)** and **Chandrababu v.State of Kerala (2016(2) KLT 842)** . 8. The seizure of the contraband in this case was on 27.6.2002. The sample reached the court only on 8.7.2003. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi** 's case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise_ 6 Crl.Appeal No.1542/2005 _Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ 9. _In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note._ 9. Moreover, the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several judgments. 10. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution 7 Crl.Appeal No.1542/2005 case in abkari cases. 11. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814)** and **Prakasan and another v. State of Kerala (2016 KHC 96)** . The relevant portion of the judgment in **Gireesh** 's case (supra) extracted hereunder: _“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))._ 8 Crl.Appeal No.1542/2005 12. In the light of the above discussion, I think the accused in this case is entitled to the benefit of doubt. Therefore, this Crl.Appeal is allowed. Conviction and sentence imposed on the appellant as per judgment dated 19.8.2005 in S.C. No.379/2001 on the file of the Additional District and Sessions Judge, (Adhoc),Fast Track, Mavelikkara is set aside. The appellant is set at liberty and the bail bond if any, executed by him is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** al/-+