IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 CRL.A.No. 681 of 2002(C) ------------------------------------- SC.237/2001 of IIIrd ADDL. SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.I, THRISSUR ................................................................. APPELLANT(S): ACCUSED ------------------------------------- RAVI, S/O.PANKAN VALATHATTIL HOUSE, MADHUKKARA DESOM, MULLASSERY VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI.C.S.HRITHIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.681 of 2002 ------------------------------- Dated this the 10th day of March, 2010. J U D G M E N T The sole accused in S.C No.237/01 of the file of the IIIrd Additional Sessions Judge (Ad hoc) Fast Track Court No.I, Thrissur, is the appellant who challenged his conviction and sentence for the offences u/s.55(a)and 55(i) of the Abkari Act imposed as per the impugned judgment. 2. The prosecution case is that on 28.10.1998 at about 6 P.M. at the property of one Pattathil Appumenon in Madukkavu desom, Mullassery Village, Chavakkad Taluk, the accused was found in possession of 47 bottles of 180 ml. each new Master XXX Rum and 25 bottles of New Masters brandy (180 ml.each) and thereby committed the offence punishable u/s.55(a) of Abkari Act. On the seizure of the article and the arrest of the accused, crime No.13/98 was registered in the excise range, Chavakkad and after investigation they filed a report whereupon C.P. 21/00 was instituted in the Judicial First Class Magistrate Court, Chavakkad and as per the order dated 27.3.2001 of the Crl. APPEAL No.681 of 2002 2 learned Magistrate in C.P.21/00, the case was committed to the Sessions Court, wherein the case was numbered as S.C.237/01, which initially made over to the court of Sub Judge and thereafter made over to the Trial Court. 3. When the accused appeared before the Trial Court, after hearing the prosecution as well as the defence, the Trial Court framed a formal charge for the offences punishable u/s.55 (a) and 55(i) of Abkari Act, which read over and explained to the accused and he pleaded not guilty. Accordingly, the prosecution adduced its evidence consists of oral testimony of Pws.1 to 6 and the documentary evidences as Exts.P1 to P7. Though no documentary evidence was adduced from the side of the defence, they examined two witnesses namely, Dws.1 and 2. During the trial M.O.s 1 to 4 material objects were identified and marked. The defence took a stand that he was falsely implicated in the crime. On the basis of the available materials and evidence on record, the Trial Court found that the accused is guilty u/s.55(a) and 55(i) of Abkari Act and accordingly he is Crl. APPEAL No.681 of 2002 3 sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1 lakh and on default to undergo rigorous imprisonment for 6 months for the offence u/s.55(a) of Abkari Act. The same is the sentence imposed u/s.55(i) of the Abkari Act also but the sentences imposed under two different counts were ordered to run concurrently. It is the above conviction and sentence challenged in this appeal. 4. I have heard Mr.Rajit, the learned counsel for the appellant and also the learned Public Prosecutor. 5. The argument raised by the learned counsel for the appellant, mainly fortified on the ground regarding the delay in producing the contraband article and the samples before the Committal Court. The learned Public Prosecutor submitted that though there is some delay, no question was put to the official witnesses regarding the delay and the accused failed to make out a case that the said delay resulted in prejudice to the accused. 6. I have carefully considered the rival contention and also Crl. APPEAL No.681 of 2002 4 perused the material and evidence on record. 7. PW1 is the Preventive Officer who detected the crime. When he was examined, he had deposed in terms of the prosecution case and according to him, he arrested the accused from the property of one Appu Menon and seized the contraband article from the possession of the accused and thus Ext.P1 arrest memo and Ext.P2 seizure mahazar are proved through PW1. Ext.P3 and Ext.P4 labels also proved through him. He identified M.O.s 1 to 4 series of material objects. Though the prosecution cited two witnesses namely Pws.2 and 3, to substantiate the allegation of the prosecution that the contraband article is seized from the possession of the accused, they turned hostile. The other official witnesses, PW4, who accompanied PW1 at the time of detection and PW5 to PW7 also supported the prosecution case. The specific defence taken by the accused is to the effect that he was falsely implicated in the crime and when he reached in the property of the said Appu Menon to get back his cow which was grazing there, the excise Crl. APPEAL No.681 of 2002 5 officials asked him as to who is the person placed the contraband article at the gatehouse of the said property and as he failed to name the person, he was implicated in the crime. 8. In this juncture, it is relevant to note that, the independent witness turned hostile and the only remaining evidence is that of the official witnesses regarding the arrest of accused and seizure of the contraband article. It is pertainant to note that though the prosecution has got a case that the contraband article were seized from the property of one Appu Menon, the said person is not either cited or examined as a witness. It is under the above factual scenario, the contention raised by the counsel for the appellant has to be examined. Admittedly, the seizure and arrest was on 28.10.1998 but the contraband article produced before the court only on 12.3.1999. Nearly about 5 months delay occurred in reaching the contraband article after its alleged seizure. Pws.5 and 6 were fully conscious that, the contraband articles were seized on 28.10.1998 but the same reached in the court only on 12.3.1999. Crl. APPEAL No.681 of 2002 6 It is the duty of the prosecution to establish the case beyond reasonable doubt and to clear whatever possible grounds that likely to be taken by the defence under their plea for acquittal. But no attempt is made by any of the official witnesses to explain the delay. It is true that the accused did not put any question to the witnesses concerned, regarding the delay. Even though no question was put to the witnesses, it is for the prosecution to offer an explanation and in such a case it is for the accused to put questions regarding the correctness of the explanation offered and its probabilities. But in the present case, absolutely there is no explanation from the side of the prosecution. 9. Besides the above, though Pws.1, 4 to 7 were examined who are official witnesses, there is no evidence as to who was the custodian of the contraband article from the date of seizure of the same on 28.10.1998 and till the date of producing it before the court on 12.3.1999. In order to buttress the argument, advanced by the learned counsel for the appellant, he has very much relied upon the decisions of this court reported in 2002(3) Crl. APPEAL No.681 of 2002 7 KLT 725 [Narayani Vs. Excise Inspector, 1989(1) KLT 601 [Dominic V. State of Kerala] and in 2007(4) KHC 236 [Jayakumar @ Kolusu Jayan Vs. State of Kerala]. In the decision reported in 1989(1) KLT 601 this court has held that, seizure of the contraband article should be reported to the court forthwith and request be made for sending sample for analysis. In the decision reported in 2002(3) KLT 725, even though in that case the delay was only for one day, this court has held that in the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing before court, especially when in that case there is no evidence as to who was in possession of the contraband article till it was produced in court, held that the chance of tampering with the sample taken and reside seized can not be ruled out. Similarly in 2007(1)KLT 971 [Rajendran V. State of Kerala], this court after considering the Chemico Legal Examination Rules, 1959 (Kerala) and Excise-Manual (Kerala) held that, in the absence of any evidence to prove that residue and sample were kept in Crl. APPEAL No.681 of 2002 8 proper custody till date of producing same before court, chance of tampering with the sample taken residue seized can not be ruled out. On examination of the facts and circumstances involved in the present case in the light of the above decisions, it can be seen that in the present case there is no independent evidence regarding the seizure and the prosecution miserably failed to sight and examine the person, who is the owner of the property, from where the contraband article were seized. The absence of evidence of those independent witnesses, in the light of the defence set up by the accused assumed important. It is also evident from the materials on record that, though the alleged seizure was on 28.10.1998, the same produced in the court on 12.3.1999 and such a huge delay is remained as unexplained. In the absence of independent witness and the drawback of the prosecution case referred above would show that, unexplained delay of more than 5 months will certainly prejudice the accused especially when there is no evidence as to who was the custody of the contraband article after the seizure Crl. APPEAL No.681 of 2002 9 and till the reaching of the same in the court. Therefore I am of the view that, the order convicting the accused/appellant for the offence punishable u/s.55(a) and 55(i) of Abkari Act is not sustainable and liable to be set aside and I do so accordingly. In the result, this appeal is allowed setting aside the judgment of the IIIrd Addl. Sessions Judge (Ad hoc) Fast Track Court, Thrissur, as SC.237/01 and the conviction and sentence imposed against the appellant. Accordingly the accused/ appellant is acquitted of all the charges leveled against him and bail Bond if any executed by them will stand cancelled and he is set at liberty. V.K.MOHANAN, Judge. ami/