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2016 DIGILAW 199 (KER)

Ashokan v. State of Kerala

2016-02-22

BHASKARAN PILLAI SUDHEENDRA KUMAR

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JUDGMENT : Bhaskaran Pillai Sudheendra Kumar, J. 1. The accused in S.C. No. 18 of 2008 on the files of the Additional Sessions Court, (Adhoc-I), Kasaragod, filed this appeal challenging the conviction and sentence passed by the court below under S. 55(a) of the Abkari Act. Heard. 2. The prosecution allegation is that on 2.7.2005 at 4.00 p.m., the appellant was found transporting 25 packets of Karnataka arrack, each packet contained 100 ml. each., in contravention of the provisions of the Abkari Act. PW 1 detected the offence. He arrested the appellant from the spot. The contraband was also seized. Thereafter, he registered the crime. The investigation was conducted by PW 4. After completing the investigation, PW 4 filed the final report before the Court. 3. Before the court below, PW 1 to PW 4 were examined and Exts. P1 to P11 were marked for the prosecution. No evidence was adduced on the side of the appellant. 4. The learned counsel for the appellant has argued that since only one sample was taken from the contraband, there is violation of mandatory provisions of Excise Manual and consequently, the appellant is entitled to acquittal. The learned counsel for the appellant relied on an unreported decision of this Court in Gopalan v. State of Kerala (Judgment dated 9th September 2015 in Crl. A. No. 47 of 2006) to buttress his argument. In Gopalan (supra) a learned Single Judge of this Court held that the provision in the Excise Manual that the Officer concerned is bound to take minimum two samples, is a mandatory provision. In this case, only one sample was taken by PW 1 as per the evidence of PW 1 as well as Ext. P4 mahazar. Therefore, there is violation of mandatory provisions of the Excise Manual as held in Gopalan (supra). The learned counsel for the appellant has further argued that there was inordinate and unexplained delay in conducting the investigation in this case and in the said circumstances, the appellant is entitled to benefit of doubt. The learned counsel relied on the decision of this Court in Krishnan H. v. State of Kerala, 2015 (2) KLT SN 8 (C. No. 11), 2015 (1) KHC 822 to support his argument. In Krishnan (supra), the court held that long delay in conducting investigation in the absence of sufficient explanation is fatal to the prosecution. The learned counsel relied on the decision of this Court in Krishnan H. v. State of Kerala, 2015 (2) KLT SN 8 (C. No. 11), 2015 (1) KHC 822 to support his argument. In Krishnan (supra), the court held that long delay in conducting investigation in the absence of sufficient explanation is fatal to the prosecution. In this case, PW 4 was the Investigating Officer. PW 4 stated that PW 4 took over the investigation of the case on 1.8.2007. PW 4 prepared Ext. P10 scene mahazar on 1.8.2007. After completing the investigation, the final report was filed before the court by PW 4 on 24.09.2007. The incident in this case was on 2.7.2005. No explanation has been given by PW 4 as to why there was long delay in conducting the investigation. Since there is inordinate and unexplained delay in conducting the investigation in this case, the appellant is entitled to benefit of doubt on that reason also. The court below did not consider the above vital aspects while convicting the appellant and consequently, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act and the appellant is acquitted for the said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty.