The High Court set aside the conviction and sentence of the accused guilty of illicit liquor possession, holding that the delay in producing contraband was unexplained and the admission of wrong samples without the accused's verification violated natural justice.
Acquittal of the accused from all charges and cancellation of bail bond.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 27TH DAY OF NOVEMBER 2015/6TH AGRAHAYANA, 1937
CRL.A.No. 374 of 2006 ( )
AGAINST THE JUDGMENT IN SC 136/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
CP 84/2002 OF JUDICIAL FIRST CLASS MAGISTRATE NEDUMKANDOM
APPELLANT(S)/ACCUSED::
BIJU, S/O. JOSE, KOCHUVEEDU, CHEMMANNAR KARA, KANTHIPPARA VILLAGE.
BY ADV. SRI.S.RAJEEV
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. (CRIME NO.421/01 OF SANTHANPARA).
BY PUBLIC PROSECUTOR SMT. LILLY LESLIE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ds
P.BHAVADASAN, J.
J U D G M E N T
The accused in this case was prosecuted for the offences punishable under Sections 55(a) and 8(2) of the Kerala Abkari Act. He was found guilty. He was therefore convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh with a default₹ clause of rigorous imprisonment for a further period of three months for the offence under Section 8(2) of the Abkari Act. No separate sentence was imposed for Section 55(a) of the Act.
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to the spot and halted the jeep a little away from the place of occurrence. As they walked by the side of the canal, they happened to locate the accused holding a black can having a capacity of 2½ litres and on the other hand holding a glass. Seeing the Police Officers, he tried to hide himself. He was apprehended and the can in his possession was seized. It was found to contain about 2 litres of liquid. By smell and taste, it was identified as arrack. They were also able to recover 660/- from his pocket. The accused was₹ arrested and Ext.P1 mahazar was prepared. PW5 took two samples of 180ml each in two bottles and had them sealed and labelled. The labels contained the signatures of the accused, witnesses and PW5. PW5 along with officers and the accused and the contraband articles and the documents prepared on the spot returned to the Station and registered Crime No.421/2001 as per Ext.P4 FIR. He prepared Ext.P5 property list and had the articles produced before court on 09.01.2002. Investigation was conducted by PW4. He
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prepared Ext.P2 forwarding note and obtained Ext.P3 Chemical Analysis Report. He recorded statements of witnesses and the charge was finally laid by PW4.
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accused was questioned under Section 313 Cr.P.C. He
denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He further added that against the sale of illicit liquor in Chemmannar toddy shop, the DY.F.I. sympathizers had objected and conducted a protest. That was led by the accused herein. When they reported to the Police Station, they were assured that appropriate steps would be taken. Two days thereafter, he says that with the connivance of the Sub Inspector of Police PW5, the contractor of the toddy shop had him implicated. He claimed to be innocent.
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gave the complete details regarding the incident, along with the fact that the accused was promptly produced before court, felt that the prosecution had established its case beyond reasonable doubt and found the accused guilty. Conviction and sentence followed.
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contraband article alleged to have been seized from the possession of the accused. In other words, the contention is that the accused had no opportunity of seeing the sample even or to verify the same, if it was taken from the contraband alleged to have been seized by him. This according to the learned counsel, is unknown in law and conviction on that basis cannot be sustained. It affects the natural rights of the accused. It was then pointed out that though the detection was on 18.12.2001, the contraband articles and the samples were produced only on 09.01.2002 as could be seen from Ext.P5 property list. The explanation offered by PW5, the Sub Inspector of Police the Detecting Officer is that he waited for the Circle Inspector, the Investigating Officer to come from Sabarimala duty and let him see the contraband articles. The learned counsel brought to the notice of this Court the evidence of PW4. PW4 the Investigating Officer, who is the CI entered investigation on 30.12.2001. Obviously he must have seen
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the contraband articles on that day. He need not have to wait till he returned from Sabarimala duty to see the articles. The reason given for the delay is obviously false. If that be so, the learned counsel pointed out that there is no proper explanation for the delay and the claim of PW5 that he had the safe custody of the same cannot be believed. These vital aspects have been conveniently omitted by the court below to be noticed and that has resulted in wrong conviction being entered into. Accordingly, it is contended that the conviction and sentence cannot stand.
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the state of affairs as far as the accused is concerned. Further, it was contended that the seal on the sample sent for chemical analysis tallied with the sample seal and that is sufficient in law. The lower court found the evidence of PWs 3 and 5 to be convincing enough and there is no reason to take a different view. Merely because there is some error committed by the court below in receiving the sample cannot be said that the conviction is vitiated and it is also pointed out that proper explanation has been offered for the delay.
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does not mean immediately but, within a reasonable time. There also, the Bench was cautious enough to mention that the delay, if any, should be properly explained. The Division Bench only cautioned that merely because a few days delay occurs, the prosecution case cannot be thrown out. But it did not hold that no explanation need to be offered.
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the Investigating Officer. The Investigating Officer started investigation of the case on 30.12.2001. He had prepared the forwarding note and sent it to court, which obviously means he must have seen the articles and the samples on 30.12.2001. If that be so, the claim made by PW5 that he had waited till 09.01.2002 for PW4 to see the articles is patently false and the explanation offered cannot be accepted. There is no satisfactory reasonable explanation offered for the delay. In view of the false explanation offered, it is extremely doubtful whether he was in custody of the article also.
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to the case in question, but it belonged to some other case. The learned Sessions Judge sought explanation from the concerned Judicial First Class Magistrate court who in turn sought explanation from PW5. One would have expected the prosecution if they had the proper sample to produce it again and recall the witness, examine him and mark it in accordance with law, giving an opportunity to the accused to controvert the claim of the prosecution. But surprisingly and shockingly enough, the learned Sessions Judge receives it privately and relies on that sample and convicts the accused. Something which is unheard of in law. Apart from the fact that it is not marked in accordance with law and marked sample is not the sample said to have been drawn by PW5, the elementary principle of natural justice too have been thrown to the winds. Again, an item of evidence which is not put to the accused when questioned under Section 313 Cr.P.C. and which forms the basis of conviction cannot be upheld.
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For the above reasons, this Court is unable to sustain the conviction and sentence awarded by the court below. This appeal is allowed. The conviction and sentence passed by the court below are set aside and the accused stands acquitted of all charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.
Sd/- P.BHAVADASAN JUDGE
ds
//True copy//
P.A. to Judge
3 issues framed by the court
Whether unexplained delay of 22 days in producing contraband articles violates the accused's rights and affects the prosecution case.
Whether admission of evidence collected and marked contrary to the legal process violates the principles of natural justice.
Whether spectral evidence not properly served or disclosed to the accused can form the basis of conviction.
Colour shows how this judgement treated each authority
Ramankutty v. Excise Inspector, Chelannur Range (2013 (3) KHC 308)Applied¶11
4 provisions across 2 enactments
BIJU, S/O. JOSE
STATE OF KERALA
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
