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2013 DIGILAW 301 (KER)

Appukuttan v. State of Kerala

2013-03-26

V.K.MOHANAN

body2013
JUDGMENT : 1. The appellant, who is the sole accused in S.C.No.934 of 2000 of the court of Additional Sessions Judge (Abkari)- Kottarakkara, preferred this appeal challenging his conviction and sentence for the offences under section 55(a) and (i) of the Abkari Act. 2. According to the prosecution, on 25.3.2000 at about 6 p.m., the accused was found in possession and engaged in the sale of 5 ltrs. of arrack in a 10 ltr. black can with a drinking glass in the granite quarry near the Elavaram Kuzhi shop junction, Ayiranalloor village, which was detected by PW1. Accordingly, the accused was questioned and seized the contraband article on the basis of which Crime No.62 of 2000 was registered in Yeroor police station for the offences under section 55(a) and (i) of the Abkari Act. 3. During the trial of the case, PWs.1 to 6 were examined and Exts.P1 to P5 were marked. M.Os.1 and 2 were identified and marked as material objects. No evidence whatsoever adduced from the side of the defence. The trial court finally found that the prosecution has succeeded in proving the allegation against the accused and accordingly, he is found guilty for the offences under section 55(a) and (i) of the Abkari act and thus he is convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for 2 years each and to pay fine of 1 lakh each and in default of payment, to undergo rigorous imprisonment for 3 more months each for the offences under section 55(a) and (i) of the Abkari Act. The sentence was ordered to run concurrently. Set off was allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal. 4. Originally, though the appeal was filed through Adv. Sri. D. Jayachandran, subsequently he relinguished the vakalat and this Court appointed Adv. Sri. Pramod Kochuthommen E. as State Brief to prosecute the appeal. Thus, I have heard Adv. Sri. Pramod Kochuthommen E., learned counsel for the appellant and Adv. Smt. V.H. Jasmine learned Public Prosecutor. 5. Learned counsel for the appellant vehemently submitted that there is substantial delay in producing the material objects before the trial court and there is no convincing explanation for such delay, but the trial court has not considered the above fact and went wrong in taking the delay lightly. Smt. V.H. Jasmine learned Public Prosecutor. 5. Learned counsel for the appellant vehemently submitted that there is substantial delay in producing the material objects before the trial court and there is no convincing explanation for such delay, but the trial court has not considered the above fact and went wrong in taking the delay lightly. Therefore, according to the learned counsel for the appellant, the appellant is entitled to get an acquittal. In support of his contention, the learned counsel placed reliance upon the decision reported in Narayani v. Excise Inspector ( 2002 (3) KLT 725 ). 6. On the other hand, the learned Public Prosecutor relying upon the decision of this Court reported in Kunhikannan v. State of Kerala ( 2006 (4) KLT 469 ) has submitted that, Ext.P1 seizure mahazar and other documents with respect to the registration of crime, and also the accused were produced in the court on the next date itself. Therefore, even though there is delay, the same will cause no prejudice to the accused, especially in the light of the above decision and hence in the absence of any other grounds, no interference is warranted with the judgment of the trial court. 7. I have carefully considered the arguments advanced by learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the judgment of the trial court and the evidence and materials on record. I have also gone through the decisions cited. 8. In the light of the rival contentions and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant for the offences under section 58(a) and (i) of the Abkari Act and whether the delay occurred in producing the material objects affected adversely the prosecution and whether the accused is entitled to get an acquittal on that ground. In the present case, to prove the arrest of the accused and the seizure of the contraband article, the prosecution has no evidence other than PW1, the then Sub Inspector of police, Yeroor police station. It can be seen from the deposition of PW1, particularly from the chief examination, that at the time of the alleged seizure, the labels were pasted on the black can as well as on the glass which are respectively marked as M.Os.1 and 2. It can be seen from the deposition of PW1, particularly from the chief examination, that at the time of the alleged seizure, the labels were pasted on the black can as well as on the glass which are respectively marked as M.Os.1 and 2. But during the cross examination, he had admitted that there was no reference in Ext.P1 mahazar about the label on the material objects. During the cross examination, he had further admitted that, “label. P1-. M.O.1- label. (M.O.1 shown and marked).” From the deposition of PW1, it is seen that the label claimed to have affixed on M.O.2 was also not seen at the time of the trial. It is also relevant to note that with respect to the arrest of the accused and the facts connected therewith were mentioned in the cross examination of PW1, and it is stated that, “100. 100 road- jeep, he further adds shop jeep.” “.......Jeep- “So, the place at which the jeep was stopped and the distance between the place from where he claimed to have seen the accused etc. are not proved beyond shadow of doubt. Further it is relevant to note that during the chief examination he had deposed that, “Sample- 151A form-5.4.2000-. 25.3.2000 to 5.4.2000 safe custody-. Law and order duty.” From the deposition of PW1 it can be seen that Ext.P1 seizure mahazar and the FIR as well as the remand application are produced in the court at the time of the production of the accused i.e., on 25.3.2000. But there is no explanation as to why the thondi article was not produced on that date or on the next working day of the court. According to me, the explanation given by PW1 is unbelievable and the same is only a lame excuse. First of all, there is no explanation for not producing the contraband article on the date, on which the accused was produced, secondly, even if PW1 was on law and order duty, he could have caused to produce the material objects on any date immediately after 25.3.2000, for which also, there is no explanation. 9. First of all, there is no explanation for not producing the contraband article on the date, on which the accused was produced, secondly, even if PW1 was on law and order duty, he could have caused to produce the material objects on any date immediately after 25.3.2000, for which also, there is no explanation. 9. In the decision relied on by the learned counsel for the appellant, i.e., Narayani v. Excise Inspector ( 2002 (3) KLT 725 ) this Court has found that, “No evidence therein as to who was in possession of contraband article till it was produced in the court” and further found that, “From the testimony of PW4 it was clear that he was not in custody of the contraband article”. But in the present case, PW1 has claimed that he was in the custody of the contraband article right from 25.3.2000 till 5.4.2000. Therefore, according to me, the above decision is not attracted. From the decision relied on by the learned Public Prosecutor it can be seen that the delay was only 4 days and this Court has not noted any defect or infirmities in the evidence of the prosecution in that case as such. But in the present case, the delay is nearly 11 days, which is not properly explained by the prosecution. The deposition of PW1 in this regard cannot be believed for the reason which I have already indicated. According to me, the delay in producing the material objects is always not against the prosecution and the same depends upon the facts and circumstances involved in each case. A Division Bench of this Court in Ravi v. State of Kerala ( 2011 (3) KLT 353 ) has observed and found that, “There is no statutory mandate to “produce” the property before the court “forthwith”. But the very fact that the statute insists on production of the property before an officer of a particular designation or rank is to ensure that there is no misuse of the property. Likewise, unless the property is before court, there cannot be a proper ascertainment of the nature and content of the property by requisitioning the service of an expert through the instrumentality of the Court”. Thus, the Division Bench has concluded that the production of the property before the court without unreasonable delay is also a necessary requirement of law. Likewise, unless the property is before court, there cannot be a proper ascertainment of the nature and content of the property by requisitioning the service of an expert through the instrumentality of the Court”. Thus, the Division Bench has concluded that the production of the property before the court without unreasonable delay is also a necessary requirement of law. The delay in producing the property before the court, by itself cannot be fatal to the prosecution, if the delay can be satisfactorily explained. After considering the statute in the above decision this Court has held that “What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But the Division Bench hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property”. In the present case, I have already pointed out the lacuna or the defect in the evidence of PW1. The explanation of PW1 for the belated production of the material objects, in spite of the fact that the accused and the connected documents were produced before the court on the date of occurrence itself, is not satisfactory and convincing. As I indicated earlier, only the evidence of PW1 is available to prove the detection of the crime and the independence witness cited and examined has turned hostile. So the defect in the evidence of PW1 coupled with the delay, according to me, goes in favour of the accused. Hence, the accused is entitled to get the benefit of doubt, especially when, though PW1 through his bald statement claimed that he was the custodian of the contraband article, no evidence is forthcoming as to how he kept the contraband article intact without any room for tampering the same and the measures taken by him to keep the contraband article in safe custody. On examination of the facts and circumstances involved in the case, in the above backdrops it is relevant to note that the labels alleged to have pasted on M.Os.1 and 2 are not seen during the trial of the case, for which there is no explanation and it is also brought on record to the effect that in Ext.P1 seizure mahazar, there was no reference to the pasting of label on M.Os.1 and 2, which contained the signatures of the accused and the witnesses. From the above facts, it can be safely concluded that the above defects and infirmities in the prosecution case definitely show that the prosecution has miserably failed to establish its case against the appellant/accused beyond reasonable doubt. Therefore, the benefit of doubt goes in favour of the accused. Hence, I am unable to sustain the conviction recorded against the appellant. In the result, this appeal is allowed setting aside the judgment dated 16.12.2005 in S.C.No.934 of 2000 of the court of Additional Sessions Judge (Abkari)-Kottarakkara, and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and accordingly he is set at liberty.