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2012 DIGILAW 765 (KER)

Lakshmy v. State of Kerala

2012-08-12

S.SIRI JAGAN

body2012
ORDER : The petitioner is the accused in C.C. 618/1997 before the Judicial First Class Magistrate-I, Hosdurg. The prosecution was one under Section 55(a) of the Abkari Act. The prosecution case was that on 29.4.1997 at 5 p.m., the petitioner was apprehended transporting 5 litres of arrack contained in a 5 litre can through the road about 20 meters to the south of the house of one Veluthambu situated in Mundakandam desom, Cheruvathur village, by the Preventive Officer, Excise Enforcement and Anti- narcotic Special Squad and thereby the accused has committed offence punishable under Section 55(a) of the Abkari Act. The Magistrate convicted the petitioner and sentenced her to undergo rigorous imprisonment for one month and to pay fine of Rs. 25,000/- with a default sentence of six months. The petitioner's appeal as Crl. A. No. 29/1999 was dismissed by the Addl. Sessions Judge (Ad Hoc-I), Kasaragod. The petitioner is challenging the judgments of the courts below. 2. The petitioner's primary contention is that the prosecution is vitiated by the long delay in producing the contraband and samples before the court. He points out that the alleged seizure of the contraband and the drawing of samples were on 29.4.1997 at 5 p.m. and the contraband and the samples were produced before the Magistrate only on 13.5.1997, constituting a delay of 14 days. According to the petitioner, this long delay has not even been attempted to be explained by the prosecution. Therefore, according to him, the petitioner is entitled to be acquitted in view of the decisions of this Court in Dominic v. State of Kerala, ( 1989 (1) KLT 601 ), Narayani v. Excise Inspector, ( 2002 (3) KLT 725 ), Alex v. State, 2003(1) (KLT S.N. 9) Case No. 12 and Ravi v. State of Kerala, 2011 (3) KLT 353 , wherein this Court has categorically held that unexplained delay in producing the contraband and the samples before the Magistrate is sufficient circumstances to infer improper custody and to acquit the accused because of the same. 3. I have heard the learned Public Prosecutor also. 4. The prosecution case itself is that the seizure of the contraband was on 29.4.1997 at 5 p.m. Admittedly, the same was produced before the Magistrate only on 13.5.1997. 3. I have heard the learned Public Prosecutor also. 4. The prosecution case itself is that the seizure of the contraband was on 29.4.1997 at 5 p.m. Admittedly, the same was produced before the Magistrate only on 13.5.1997. The Excise Officer, who apprehended the petitioner and was examined as PW4, was specifically asked a question in cross examination as to the reason for the delay in producing the contraband before the court. His answer was that for the delay, there is no specific explanation. As such, the mischief of delay in producing the contraband before the Magistrate squarely comes within the purview of the decisions of this Court relied upon by the petitioner mentioned above. In view of those decisions, the petitioner is entitled to an acquittal insofar as the prosecution was not able to satisfy this Court that the contraband and the samples were kept in proper custody till the date of production before the court, prompting this Court to infer all chances of tampering with the samples taken and the residue seized. Accordingly, the judgments of the courts below are set aside and the petitioner is acquitted of the charges against him in C.C. No. 618/1997 before the Judicial First Class Magistrate-I, Hosdurg. The petitioner's bail bond would stand cancelled. The Criminal R.P. is allowed as above. Before parting with this case, I would like to point out a recurring defect in the prosecution of abkari offences, which is solely due to either negligence or deliberate inaction on the part of the excise officials. It is disconcerting to note that in many cases coming up before this Court, it is found that there is considerable delay by the Excise Officers in producing the contraband and samples before the Magistrate as enjoined under law, which legal position has been explained by this Court again and again. As a result, many accused who were liable to be convicted escape without any punishment solely due to the inaction of the excise officials. This Court tends to believe that probably the same is deliberate with the intention to provide a chance for acquittal to the accused. This case is a classic example for the same. There was delay of 14 days, despite which the officer who seized the contraband did not even try to explain the delay. This Court tends to believe that probably the same is deliberate with the intention to provide a chance for acquittal to the accused. This case is a classic example for the same. There was delay of 14 days, despite which the officer who seized the contraband did not even try to explain the delay. If this trend continues, his Court will be forced to direct the Government to initiate disciplinary proceedings against the officers concerned for their lapse in conducting the seizure and prosecution in accordance with law established. The Public Prosecutor shall see that all the Excise Officers of this State are promptly informed about the same. Forward a copy of this judgment to the Secretary, Department of Excise and the Commissioner of Excise, who shall issue a circular informing all excise officers that hereinafter, if such lapses are found out, the concerned excise officer will be liable for disciplinary action. A compliance report shall be filed within one month. Post on 16.10.2012 for the report.