Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 1012 (KER)

Varghese, S/o. Ippathiri v. State Of Kerala

2020-11-27

K.HARIPAL

body2020
JUDGMENT : Appellant is the accused in S.C.No.299/2005 of the Additional Sessions Court-II Kalpetta. By the judgment dated 22.11.2007 he stands convicted for offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for three months. That case had originated from the final report filed by the Excise Inspector, Kalpetta in Crime No.12/2003 of that Excise Range. The precise allegation is that on 19.05.2003 at about 3.00 p.m., while the Excise Inspector and party were engaged in patrol duty, near the grotto on the Pallithodu-Mundupara road, in Pallithodu desom, Vythiri taluk, the appellant was found moving through the road carrying a five litre black can containing 2 ltrs. of arrack. He was intercepted, the contraband was seized from his possession and after preparing the mahazar in the presence of independent witnesses the crime was registered. After investigation, the charge sheet was laid before the Chief Judicial Magistrate, Kalpetta alleging offence punishable under Section 8(2) of the Abkari Act. After completing the procedural formalities, the case was committed to the Sessions Court, Kalpetta, from where the matter was made over to the trial court. 2. After hearing counsel on both sides, when the charge was framed, read over and explained, the appellant pleaded not guilty. He was on bail. He was defended by the counsel engaged by him. 3. Four witnesses were examined on the side of the prosecution as PWs 1 to 4. Exts.P1 to P7 were marked. The contraband was identified and marked as MO1. On completion of the prosecution evidence, when examined under Section 313(1)(b) Cr.P.C., he denied all the incriminating evidence. According to him, he has no connection with the contraband produced before the court. Evidently, there was no ground for acquitting the appellant under Section 232 Cr.P.C. The appellant did not adduce any evidence in defence. After hearing counsel on both sides, by the impugned judgment, he was found guilty of the offence alleged against him and sentenced as aforestated. Aggrieved by the same, the appellant has come up in appeal. 4. I heard the learned counsel for the appellant as well as the learned Public Prosecutor. The entire records leading to the judgment were summoned and examined. 5. PW1 is the detecting officer. Aggrieved by the same, the appellant has come up in appeal. 4. I heard the learned counsel for the appellant as well as the learned Public Prosecutor. The entire records leading to the judgment were summoned and examined. 5. PW1 is the detecting officer. According to him, on 19.05.2003, while moving through the Pallithodu-Munduparakkunnu road, near the grotto the appellant was found moving through the road at a distance of 25 metres, carrying a black can in his hand. Seeing the Excise party he got perplexed and tried to run away, but was restrained and the content of the can was tested in the presence of independent witnesses. They realised that it contained two litres of arrack. He was arrested; after taking a sample of 200 ml. in a separate bottle, the sample bottle as well as the can were sealed and labels containing signatures of himself, witnesses and the appellant were affixed. He prepared the Ext.P2 mahazar at the spot itself. As the appellant had some injury on his person, he was got examined at the Government hospital, Kalpetta, then taken to the Range Office and the crime was registered. The appellant and the material objects were produced before the court on the same day. Thereafter, as directed by the Assistant Excise Commissioner, he himself conducted investigation and laid the charge sheet. He proved Exts.P1 to P7 documents as well. 6. A similar version can be seen from the evidence tendered by PW2 Padmakumar, Assistant Excise Inspector who accompanied PW1. The testimony of both the witnesses remain unshaken in cross-examination. PW3 is a neighbour of the appellant. Even though he admitted his signatures on the Ext.P1 arrest memo and Ext.P2 seizure mahazar, denied having witnessed the occurrence. Similarly, PW4 also admitted his signatures on Exts.P1 and P2. He also denied having seen the seizure of the contraband from the appellant. Both have also admitted their signatures found on the label of MO1. Both these witnesses were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. 7. Similarly, PW4 also admitted his signatures on Exts.P1 and P2. He also denied having seen the seizure of the contraband from the appellant. Both have also admitted their signatures found on the label of MO1. Both these witnesses were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. 7. The learned counsel for the appellant raised three grounds in support of the appeal, that there is considerable delay in investigating the case, independent witnesses have not supported the prosecution case and hence the finding based on the interested versions of the officials is bad and that PW1, the detecting officer himself has conducted the investigation and laid the charge sheet. 8. The argument that there is considerable delay in investigating the case, cannot be highlighted as a serious issue. Even though the learned counsel relied on the decision reported in Krishnan v. State [2015 (2) KLT SN 8 (Case No.11)], in the factual situation of the case such a delay cannot be described as material or fatal. In fact, scope for a detailed investigation in a run-of the mill type Abkari case of this nature is rather thin. A conventional type of investigation is not called for in such cases. When we say about conventional type of investigation, what comes to one's mind is the authorised officer, on getting information about the commission of an offence, registering the crime, sending a report to the Magistrate, then proceeding to the place of occurrence, collecting necessary materials by visiting the place, preparing the scene mahazar, examining the witnesses, arresting the offender and, based on the materials collected and the cumulative circumstances, forming an opinion about the complicity of the offender and then laying the final report before the court. In the given type of cases, even though witness notes are taken, such courses of action are not called for; when an offensive article is found in the possession of an offender, and on being satisfied that it reveals an offence, then after completing the formalities by seizing the item and collecting the sample, the material objects are produced before court along with the F.I.R./occurrence report and other documents and also the accused, if arrested. He has to make a requisition also to the court by means of a forwarding note, for getting report from the chemical examiner. He has to make a requisition also to the court by means of a forwarding note, for getting report from the chemical examiner. When these are done, substantial portion of investigation can be said to have been completed. On detection of an offence by an authorised officer, after prima facie satisfied that what is seized from the suspect is an offensive article, he is forming only a prima facie opinion, which is tentative, about the nature of the article. Even though an Abkari officer or police officer may be sure that the item seized is an offensive article, that opinion alone cannot stand judicial scrutiny. That is why sample is collected and sent for opinion for reassuring and confirming the nature of the article, which can be done only by an expert. In other words, a conclusive opinion about the offence can be formed only after getting chemical examiner's report. 9. Here, documents suggest that the forwarding note was produced before court on the very day of detection. However, Ext.P7 report had reached the court only on 06.08.2004 and the final report was laid on 25.02.2005. These sequences of events indicate that there is no substantial delay in laying the charge sheet. Even otherwise such a plea can be considered only if the appellant/accused had suffered any prejudice due to the delay in investigation. Records indicate that the appellant was released on bail on 26.05.2003. There is no case that any prejudice has been caused to the appellant. 10. The second argument that since the independent witnesses have turned hostile to the prosecution, the appellant should not have been convicted, also does not merit consideration. As noticed earlier, both PWs 3 and 4, though stated that they did not witness the incident, have admitted having signed both the arrest memo and the seizure mahazar and also the signatures found on the label affixed to the contraband. Both of them are neighbours to the appellant and, in all probability, they must have been won over by the appellant at the time of the trial. Even though they wanted to say that the documents were signed at the Excise office, that was rightly disbelieved by the learned Judge. They wanted to make the court believe that they had gone to the Excise office to see the appellant when he was taken to the office. The Exts.P1 and P2 are contemporaneous documents. Even though they wanted to say that the documents were signed at the Excise office, that was rightly disbelieved by the learned Judge. They wanted to make the court believe that they had gone to the Excise office to see the appellant when he was taken to the office. The Exts.P1 and P2 are contemporaneous documents. After attesting these material documents, they were retracting from the earlier stand, which only indicate that they were trying to support the appellant, as an afterthought. In umpteen number of decisions this Court has cautioned that courts shall not be carried away by the prevaricative stands taken by such cunning performers in the witness box, evidently to jettison the accused from criminal liability. [See the decisions in Chamy v. State of Kerala (2020 (4) KLJ 446), Suresh v. State ( 1995 (1) KLT 636 ), Paravan v. State of Kerala ( 2007 (1) KLT 396 ), etc.] 11. Moreover, it is the settled proposition of law that if the evidence tendered by the official witnesses is clinching and satisfactory, there is no hazard in proceeding against the offender basing on that evidence. The defence has no case that PWs 1 and 2 have any previous acquaintance with the appellant and for that reason it cannot be heard to say that they were fabricating false case against him. 12. Turning to the third argument, there is no mandate that the detecting officer himself shall not conduct investigation. The Hon'ble Supreme Court considered the question in detail in the recent judgment in Mukesh Singh v. State(Narcotic Branch of Delhi)[ 2020 (5) KHC 1 (SC)]. The question posed for consideration before the Constitution Bench was whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation the accused is entitled to acquittal. After surveying the earlier authorities on the subject, the five Judge Bench of the Apex Court ruled thus:- “12. The question posed for consideration before the Constitution Bench was whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation the accused is entitled to acquittal. After surveying the earlier authorities on the subject, the five Judge Bench of the Apex Court ruled thus:- “12. From the above discussion and for the reasons stated above, we conclude and answer the reference as under: I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan ( 1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709 ; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal; II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.” 13. The appellant has not attributed any motive against PW1, the detecting officer who conducted the investigation in the case. The appellant has not attributed any motive against PW1, the detecting officer who conducted the investigation in the case. There is also no suggestion that consequent to the investigation conducted by him any bias or prejudice has been caused. 14. To sum up, none of the contentions urged by the learned counsel will hold good to reverse the finding of the trial court. The learned Additional Sessions Judge has relied upon the oral testimony of PWs 1 and 2 and other material evidence to proceed against the appellant. After re-assessing the evidence, this Court also do not find valid reasons to strike a different note. 15. Considering all these aspects the appellant could not make out any reason to interfere with the conviction under challenge. It is only to be confirmed. However, considering the time-lag of more than 13 years and having regard to the small quantity involved, sentence imposed on the appellant is modified into rigorous imprisonment for six months. Fine and default sentence shall remain as such. In the result, confirming the conviction and modifying the substantive sentence to rigorous imprisonment for six months, the appeal is dismissed. He shall be entitled to get the benefit of set off under Section 428 Cr.P.C.