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Lukose S/O.Joseph v. State of Kerala

Kerala HC24 Jan 2019CRL.A/1556/2006

Case brief

AI extract

What is this about?

The High Court of Kerala acquitted the appellant in an appeal against conviction and sentence for possessing arrack under the Kerala Abkari Act. The court found serious infirmities including delayed production of properties, lack of proper sealing, and the detecting officer conducting the investigation.

What did the court decide?

Appellant acquitted under Section 386(b)(i) Cr.P.C.; conviction and sentence set aside; accused released from prosecution.

Lukose S/O.Joseph Vs State of Kerala — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.UBAID

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THURSDAY, THE 24TH DAY OF JANUARY 2019/4TH MAGHA, 1940

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CRL.A.No.1556 of 2006

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JUDGMENT IN SC 196/2005 of ADDL. SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 13-07-2006

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APPELLANT/ACCUSED :-

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LUKOSE, S/O.JOSEPH THOTTIYIL VEEDU, PULLUKANDAM KARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK.

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BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA

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RESPONDENT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.1556/2006

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JUDGMENT

The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (the Act) in S.C.No.196/2005 of the Court of Session, Thodupuzha. He faced trial before the learned Additional Sessions Judge (Adhoc-II), Thodupuzha on the allegation that at about 5 p.m. on 1.8.2000, he was found possessing 1.5 litres of arrack in a plastic bottle. The offence was detected by the Excise Inspector of the Udumbanchola Excise Range. He arrested the accused on the spot, and seized the bottle allegedly containing arrack. On the basis of the arrest and seizure, he registered the crime, conducted major part of investigation, and later, investigation

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was taken over by the Excise Circle Inspector. After investigation, the Excise Inspector himself submitted final report in court.

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The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed

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against him. The prosecution examined three witnesses,

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CRL.A.No.1556/2006

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and proved Exts.P1 to P6 documents in the trial court.

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The MO1 property was also identified during trial. The

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accused did not adduce any evidence in defence. On an

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appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for six months, and to

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pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 13.7.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find some infirmities in this case, the benefit of which must go to the accused. Of the three

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witnesses examined in the trial court, PW1 is the

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Excise Inspector, who detected the offence, registered the crime and occurrence report, and also conducted major part of investigation. PW2 examined as

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independent witness turned hostile. PW3 is the Excise Circle Inspector, who completed the investigation.

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PW1 has given evidence regarding the arrest of

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the accused, and the seizure of a plastic bottle

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CRL.A.No.1556/2006

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allegedly containing arrack. The crucial question is

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whether the liquid found in the MO1 bottle seized by PW1 was identified as arrack, as the prosecution would allege. PW1 has not stated anything about the seal

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affixed by him on the sample.

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This Court has settled that in cases like this

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the properties must be produced in court without delay. The detection was made by PW1 on 1.8.2000, but the properties were produced in court only on 16.8.2000. There is no explanation for this delay of 15 days in producing the properties. It is not known in whose

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custody or possession the properties were till 16.8.2000. Possibility of tampering with the

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properties will have to be doubted by the court in such a situation. PW1 does not explain how the sample and other properties could be identified, or what personal seal was affixed by him on the sample.

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The legal position now stands settled by the

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Hon'ble Supreme Court in Mohan Lal v. State of Punjab [AIR 2018 SC 3853] that a person, who detected the

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CRL.A.No.1556/2006

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offence and who will have to come to court as the

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prominent witness to prove the factual aspects cannot conduct investigation. PW3 only conducted last part of investigation, and concluded it. The major part of investigation was conducted by PW1 himself. He is the detecting officer. When cross examined on this aspect,

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he stated that he was aware of the Government Order prohibiting investigation by detecting officer, but, still he conducted investigation. He has no explanation why he himself conducted investigation. This is a serious infirmity, affecting the whole prosecution.

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The detection was made in August, 2000, but

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investigation was conducted after four years. Nobody has got any explanation for the delay in the process. No doubt, such inordinate delay will definitely vitiate the prosecution. As discussed in the foregoing paragraphs, I find that there are so many infirmities in this case affecting the prosecution case. The

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benefit of all these must go to the accused by way of acquittal.

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CRL.A.No.1556/2006

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appellant is found not guilty of the offence under Section 8(2) of the Act, and he is acquitted of the

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said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in S.C.No.196/2005 of the court below will stand set

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aside, and the accused will stand released from

prosecution.

//TRUE COPY//

P.A. TO JUDGE

Jvt/1.2.2019

Lukose S/O.Joseph v. State of Kerala

Case brief

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Lukose S/O.Joseph v. State of Kerala

Case brief

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