V.T. Narayani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945** **CRL.REV.PET NO. 2111 OF 2012** **AGAINST THE ORDER/JUDGMENT CRA 359/2010 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD SC 432/2007 OF ASSISTANT SESSIONS COURT/SUB COURT, HOSDRUG REVISION PETITIONER/APPELLANT/ACCUSED:** V.T.NARAYANI AGED 57 YEARS D/O GOVINDAN, VANNARVAYAL DESOM, PULLUR VILLAE,PO HARIPURAM, KASARGOD DISTRICT. BY ADV SRI.SURESH KUMAR KODOTH ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031. ## **OTHER PRESENT:** PP – SRI. M.C.ASHI **THIS CRIMINAL REVISION PETITION HAVING FINALLY HEARD ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.2111 of 2012 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.2111 of 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of December, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 432 of 2007 on the files of Assistant Sessions Judge, Hosdurg, alleging the commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 23.12.2005 at 9.30 hours, the revision petitioner/accused was found in possession of 4 litres of arrack contained in a jerry can at the public road Vannaravayal-Udayamangalam and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts P1 to P12 were marked. The trial Court found the accused guilty and convicted her to undergo simple imprisonment for a period of three months and to pay :3: CRL. R.P. No.2111 of 2012 a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.359 of 2010 before the Sessions Court, Kasaragaod, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the following contentions: The first contention is regarding the violation of Section 53A of the Abkari Act. The contention of the revision petitioner is that Ext.P8 inventory report is prepared by PW5 - Excise Inspector, though it is seen counter signed by the Assistant Excise Commissioner. The revision petitioner relying on the evidence of PW5 would submit that as directed by the Assistant Excise Commissioner, he has prepared the inventory report. The CRL. R.P. No.2111 of 2012 :4: revision petitioner took me to Ext.P8 inventory prepared, which contained signature of the Assistant Excise Commissioner and also the signature of the Excise InspectorPW5 and signature of the Excise Inspector contains the date 23.12.2005, which is the date of occurrence, whereas the signature of the Assistant Excise Commissioner does not bear any date. In respect of the said contention, the revision petitioner relies on the judgment of this Court in _**K. Umesh v. State of Kerala [2023 (1) KLT 7]**_ and also the judgment of this Court in _**Balakrishna Rai v. State of Kerala [2020 (3) KLT 727].**_ Per contra, the contention of the learned Public Prosecutor is that only what has been stated by PW5 is that he has prepared the inventory as directed by the Assistant Excise Commissioner. He also relies on the judgment in _**Balakrishna Rai**_ 's case cited(Supra), specifically to paragraph 26 of the judgment, in which it is stated that it is not necessary that the Assistant Excise CRL. R.P. No.2111 of 2012 :5: Commissioner, the authorised officer himself shall prepare the inventory in his own handwriting or that the physical act of writing or making it shall be done by himself, but he shall be the author of the inventory prepared and that he shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the learned Magistrate for certification. The revision petitioner further submits that there is an inordinate delay in completing the investigation. The date of occurrence was on 23.12.2005 and the chemical analysis report was ready on 20.06.2006, in spite of the same, the complaint was filed only on 19.02.2007. The evidence of PW6 clearly shows that the investigation was started 2 years after the alleged occurrence. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is CRL. R.P. No.2111 of 2012 :6: strict compliance with the statutory formalities mandated as per the Abkari Act. This court in _**Baburaj v. State of Kerala[2021 (6) KLT 416]**_ , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in _**Sathi v. State of Kerala[2007 (1) KLT SN 57].**_ In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention raised is regarding noncompliance of Section 53A of the Abkari Act. Section 53A deals with the disposal of seized liquor, intoxicating drugs or articles and the Section mandates that the same could be CRL. R.P. No.2111 of 2012 :7: disposed of by the authorized officer referred to in Section 67B (as per the said Section authorized officer shall be an officer not below the rank of Assistant Excise Commissioner) and the authorized officer shall prepare an inventory of seized liquor, intoxicating drugs or articles and make an application to the magistrate for certifying the correctness of the inventory and for other procedures mentioned therein. The seizure was on 23.12.2005. A perusal of Ext P8 inventory report would show that PW5 Excise Inspector has signed the same on 23.12.2005 itself and he admits that he has prepared the inventory but as directed by the Assistant Excise Commissioner. Though there is a signature affixed by the Assistant Excise Commissioner but does not bear any date. Admittedly, the Assistant Excise Commissioner is not examined in the present case. This Court in _**Balakrishna Rai**_ ’s case cited supra was considering almost an identical situation and held in paragraphs 24, 25 and 26 as follows. CRL. R.P. No.2111 of 2012 :8: _“24. There is merit in the contention of the learned counsel for the petitioner that the inventory was not prepared by the authorised officer but it was only signed by him. True, Ext.P9 inventory is signed by the Assistant Excise Commissioner, the authorised officer. But, it also bears the signature of the Preventive Officer with the date 22.08.2008, that is, the date of the occurrence. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised officer, but it was prepared by PW1 Preventive Officer himself._ _25. This Court dealt with almost similar facts in Chandran @ Chandrasekharan v. State of Kerala : (2016 (4) KLT 727 : 2016 (5) KHC 650) and it was held as follows: “In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub-section (2) of Section 53A of the Abkari Act. Since Ext. P7(a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the Court. However, in this case, the contraband articles were not produced before the Court and instead of that, the prosecution relied on Ext.P7(a) inventory, which is patently illegal and consequently, the revision_ CRL. R.P. No.2111 of 2012 :9: _petitioner is entitled to acquittal”. (emphasis supplied) 26. Section 53A(2) of the Act mandates that the inventory shall be prepared by the authorised officer. Of course, it is not necessary that he shall prepare the inventory in his own handwriting or that the physical act of writing or making it shall be done by himself. But, he shall be the author of the inventory prepared. He shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the Magistrate for certification. It is for the authorised officer to consider and include in the inventory the particulars necessary to identify the liquor.”_ 8. This court again considered the issue in _**Umesh**_ 's case cited (Supra) and held in paragraphs 80 and 82 as follows: _“80. In the facts of this case, Ext.P-8 is the inventory, claimed to have been prepared in accordance with Section 53A(2). It is seen signed by PW1 [Preventive Officer in charge of Excise Inspector] as well as by the Assistant Excise Commissioner. Both signatories have not shown any date, on which, they stated to have signed it. Also, the Assistant Excise Commissioner, who is stated to have signed Ext.P-8 inventory, has not given any evidence. PW1, other than marking Ext.P-8, has not_ CRL. R.P. No.2111 of 2012 :10: _given any positive evidence regarding the preparation of the inventory and that it was actually prepared by the authorized officer, namely the Assistant Excise Commissioner or even that Ext.P-8 inventory was verified by the Magistrate, as mandated in the section. “_ ## _81. xxx xxx xx_ _82. At any rate, the case records would show that the request for verification of the inventory has been given to the Magistrate only on 01.03.2011 and the certificate is seen issued by the Magistrate on 01.07.2011. There is undue delay in the process of verification. In other words, the inventory and the verification process is not seen prepared in accordance with the requirements of S.53A(2). It has to be borne in mind that, in the instant case, the seized contraband has not been produced before the Court. So, there should be substantial assurance to the Court to safely reach a conviction, based on the inventory, said to have been prepared as per Ext.P-8. Since, the seized contraband has not been produced before the Court, presumably, by virtue of the discretion granted under S.53A(1), in order to ensure that the Court can safely base their conviction, the inventory should be prepared strictly in accordance with the requirements of S.53A(2). Hence, in the instant case, there is no evidence that Ext.P-8 has been_ CRL. R.P. No.2111 of 2012 :11: _prepared by the authorized officer and that it has been subjected to proper verification. The signatories to Ext.P-8 have not even affixed the dates. The verification is highly belated. For all these reasons, it is not safe to rely on these materials, so as to convict the accused. These aspects have not been duly considered by the Sessions Court concerned. In other words, the impugned conviction and sentence, imposed on the appellant/accused, is illegal and ultra vires.”_ In view of the fact that the inventory was prepared by PW5, the Excise Inspector, on the date of seizure itself and there is no evidence adduced by the Excise Commissioner, it could be concluded that there is no evidence to prove that there was application of mind on the part of the authorized officer while preparing the inventory and submitting it for certification before the learned magistrate. Therefore, I hold that Ext P8 inventory report cannot be acted upon being one prepared in violation of the provisions of Section 53A of the Abkari Act. 9. The next contention raised is regarding the CRL. R.P. No.2111 of 2012 :12: unexplained delay in completing the investigation. The date of occurrence was on 23.12.2005 and the chemical analysis report was ready on 20.06.2006, in spite of the same, the complaint was filed only on 19.02.2007. The evidence of PW6 clearly shows that the investigation was started 2 years after the alleged occurrence. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** , _**Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT 718**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: CRL. R.P. No.2111 of 2012 :13: _“12. There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately_ CRL. R.P. No.2111 of 2012 :14: _thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained.”_ ## In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of_ CRL. R.P. No.2111 of 2012 :15: _sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision CRL. R.P. No.2111 of 2012 **==> picture [20 x 9] intentionally omitted <==** petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. 11. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against her. The bail bond shall stand cancelled and she is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. Sd/- sm/ **VIJU ABRAHAM JUDGE**