IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 CRL.A.No. 1035 of 2003() ---------------------------------------- SC.187/1998 of ADDL.SESSIONS COURT (ADHOC II), THALASSERY .................... APPELLANT(S): ACCUSED: ----------------------------------------- PAYYAMBALLI BINOY, S/O.AGASTY, AGED 23 YEARS, AYYAMKUNNU AMSOM, KARIKKOTTAKKARI, KOTTUKAPARA. BY ADVS. SRI.P.SURESH, SRI.C.A.CHACKO. RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- THE SUB INSPECTOR OF POLICE, KARIKKOTTAKKARI POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1035 of 2003 --------------------------------- Dated this the 23rd day of August 2011 J U D G M E N T The appellant was convicted by the Addl. Sessions Judge (Adhoc-II), Thalassery for offence punishable under Sec.55(a) of the Abkari Act and was sentenced to undergo R.I. for one year and to pay Rs.1,00,000/- as fine and in default to undergo R.I. for six months. This appeal is directed against the said conviction and sentence. 2. The case of the prosecution is that on 22.6.1997 at about 8 AM, PW1, the Sub Inspector of Police and PW3, Police Constable and others were on patrol duty and when they reached near the scene of occurrence, they found the accused carrying something in two covers in his hand. PW1 felt suspicion. The accused was intercepted and questioned. The two covers were examined by him. Each cover contained 25 packets each of 100ml of illicit liquor. Crl.A.No.1035 of 2003 -: 2 :- Thus the total quantity according to him would be 5 litres. The accused was arrested. The contraband articles were seized by him as per a seizure mahazar. Three packets were taken in a separate bottle as sample and that sample bottle was packed, sealed and labelled then and there. On the label, signatures of the witnesses and of the accused were obtained. F.I.R. (Ext.P2) was suo motu registered by PW1. The investigation was stated to have been conducted by the Head Constable and was stated to have been verified by PW4, the Circle Inspector of Police. The charge sheet was laid against the accused. 3. PWs.1 to 4 were examined and Exts.P1 to P4 were marked. The remaining 47 packets of arrack with two plastic cover were marked as MO1 series. 4. The learned Addl. Sessions Judge accepted the evidence given by PW1, the Sub Inspector of Police which was corroborated by PW2 to hold that the detection of the crime is true. PW2, an independent witness did not support Crl.A.No.1035 of 2003 -: 3 :- the prosecution. The Head Constable was not examined. PW4, the Circle Inspector has stated that the investigation was conducted by the Head Constable. But PW4 did not conduct any investigation in this matter. The charge sheet was also laid by the Sub Inspector. It is not discernible from the evidence of PW4, as to what was the role played by him in this case. 5. The learned counsel for the appellant would vehemently argue that the evidence given by PW1 and PW3 cannot be acted upon since there is inconsistency in their evidence; that apart, even regarding time of apprehension there is inconsistency. While in Ext.P1 it is noted that the accused was apprehended at 8AM in evidence it was stated that the detection was at 10AM. Whatever that be, the crucial point is whether the 50 packets alleged to have been seized from the possession of the accused contained illicit liquor and whether the properties were forwarded to the court within a reasonable time. It is true that Ext.P1 the Crl.A.No.1035 of 2003 -: 4 :- seizure mahazar and Ext.P2 F.I.R. reached the court immediately on the next day of the incident. Therefore, it is possible to hold that the seizure was reported immediately. But the prosecution has to explain the delay if any caused in forwarding the properties (contraband articles) and also the sample bottle to the court. Ext.P3 is the copy of the forwarding note and the requisition letter sent by the Sub Inspector. 6. Though PW1 says that the sample and the properties were produced in court on 7.7.1997 that is found to be not correct since even the requisition was signed by the S.I. on 10.7.1997. The seal of the court affixed on this requisition letter shows that it reached the court only on 2.9.1997. Therefore, it should have been explained by the prosecution as to why there was unreasonable and unexplained delay in producing the properties in court. Nothing was stated by PW1 as to the officer under whose custody the properties were till those properties were Crl.A.No.1035 of 2003 -: 5 :- produced in court. PW1 himself has no idea as to when exactly the properties were produced in court. As stated earlier the Head Constable who was stated to have conducted the investigation was not examined. The learned counsel for the accused submitted that PW4 being a subordinate of PW1 would be obliged to prepare the records as desired by the Superior officer and as such it cannot be said that an impartial investigation was done or could have been done by the Head Constable. The further fact is that the Head Constable was not examined. PW4, the C.I. had no role at all in the investigation or in the laying of charge sheet. Therefore, no evidence was adduced with regard to the investigation conducted in this case. The unreasonable delay in producing the property and sample bottles remained unexplained. The properties (sample bottle also) must have changed hands before it reached the court. As such, I find that the accused is entitled to the benefit of reasonable doubt. As such, the conviction has to be set Crl.A.No.1035 of 2003 -: 6 :- aside. In the result, this Crl.A. is allowed. The conviction and sentence passed against the accused are set aside. The accused is set at liberty. The bail bond executed by him will stand cancelled. N.K.BALAKRISHNAN, JUDGE. Jvt