Allowed

Raman v. State of Kerala

Kerala HC22 Feb 2021CRL.A/2213/2006

Case brief

AI extract

What is this about?

The Kerala High Court allowed the criminal appeal against a conviction under the Abkari Act. The court held that unexplained delays in investigation and in producing the seized sample before the analyst created serious doubt, entitling the appellant to acquittal. The conviction and sentence were set aside.

What did the court decide?

Conviction and sentence set aside; appellant released on bail; bail bond cancelled.

Raman Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶4

MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

¶5

CRL.A.No.2213 OF 2006

¶6

AGAINST THE JUDGMENT IN SC 395/2005 DATED 18-10-2006 OF ADDITIONAL SESSIONS JUDGE(ADHOC)-I, MANJERI DEVISION

¶7

AGAINST THE JUDGMENT IN CP 45/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR

¶8

APPELLANT/ACCUSED:

¶9

RAMAN

¶10

S/O KUNHADI,MADAMBATH HOUSE, PACHATTIRI AMSOM,, PARIYAPURAM DESOM.

¶11

BY ADV. SRI.SUNNY MATHEW

¶12

RESPONDENT/COMPLAINANT:

¶13

STATE OF KERALA

¶14

THROUGH THE EXCISE RANGE INSPECTOR,, TIRUR, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

¶15

R1 BY SMT.MAYA.M.N, PUBLIC PROSECUTOR

¶16

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

CRL.A.No.2213 OF 2006

¶18

¶19

P.V.KUNHIKRISHNAN, J.

¶20

===================

¶21

Crl.A. No. 2213 of 2006

¶22

===================

¶23

Dated this the 22nd day of February, 2021

¶24

J U D G M E N T

¶25

Appellant is the accused in SC No. 395/2005 on the file of the Additional Sessions Judge, (Adhoc)-I, Manjeri division. The above case is charge sheeted by the Excise Range, Tirur, alleging offence punishable under Section 8(2) of the Abkari Act.

¶26

The prosecution case is that, on 31-10-2003, while the Tirur Excise Range Sub Inspector and his party were doing patrolling duty, at about 5 pm, the accused was found in possession of 3½ litres of arrack in a plastic can having capacity of 5 litres. Hence it is alleged that, the accused committed the offence punishable under Section 8(2) of the Abkari Act.

¶27

To substantiate the case, the prosecution examined PW1 to PW4. Exts. P1 to P7 are the documents marked on the

¶28

side of the prosecution. MO1 is the material object.

¶29

After going through the evidence and documents, the

¶30

CRL.A.No.2213 OF 2006

¶31

¶32

trial Court found that, the accused committed the offence punishable under Sections 8(1) & 8(2) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

¶33

Heard the learned counsel for the appellant and the learned Public Prosecutor.

¶34

The learned counsel for the appellant submitted that, there is a long delay in conducting the investigation and submitting the final report in this case. The learned counsel submitted that the alleged seizure in this case was on 31-10-2003 and the final report was filed only on 30-08-2005. There is no explanation for the delay of two years in completing the investigation. The learned counsel also submitted that, as per Ext.P7 Forwarding Note, the sample was dispatched on 01-11-2003, through Excise Guard N.P. Sasi. But as per Ext.P4 Analyst Report, the Analyst received the same only on 02-12-2003. The above mentioned N.P. Sasi, the Excise Guard is

¶35

CRL.A.No.2213 OF 2006

¶36

¶37

not examined by the prosecution. There is no explanation from the prosecution for the delay in producing the sample before the Analyst. The learned counsel submitted that the appellant is entitled to the benefit of doubt on that ground also.

¶38

The learned Public Prosecutor submitted that simply because there is delay in conducting the investigation that is not fatal. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence on technical grounds. The learned public prosecutor submitted that, there is oral and documentary evidence to prove the case and the trial court perfectly justified in convicting the accused.

¶39

The point for consideration in this case is whether the appellant/accused committed the offence punishable under Section 8(1) & (2) of the Abkari Act.

¶40

Admittedly, the alleged seizure in this case was on 31-10-2003. A perusal of Ext.P7 the forwarding note, it is clear that the forwarding note was received by the court on 01-11-2003. The sample was forwarded to the analyst through Excise Guard N.P. Sasi. But on perusal of Ext.P4 the Analyst Report, it is clear that the Analyst received the sample only on

¶41

CRL.A.No.2213 OF 2006

¶42

¶43

02-12-2003. As contended by the learned counsel for the appellant the above Excise Guard N.P.Sasi is not examined by the prosecution. There is absolutely no explanations from the prosecution about the delay in producing the sample before the Analyst by the Excise Guard N.P.Sasi. If he accept Exts.P7 and P4, it is clear that the sample was in his possession for about one month. But he is not examined. It is true that, the date “02-122003 with an initial is there in Ext.P7. It is not clear, whether this is the date of dispatch of the sample from the Court. It is the duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. If the prosecution is not able to prove these links the accused is entitled to the benefit of doubt. I think in this case the accused is entitled to the benefit of doubt because the prosecution has not explained the delay in producing the sample before the Analyst by the Excise Guard N.P.Sasi atleast from 01-11-2003 to 02-12-2003.

¶44

Moreover, the alleged seizure in this case was on 31-10-2003 and the final report was filed only on 30-08-2005. There is absolutely no explanation from the prosecution for the

¶45

CRL.A.No.2213 OF 2006

¶46

¶47

delay in the investigation.

¶48

There is no explanation for the delay. The delay in conducting the investigation without any explanation, is fatal to the prosecution case. This Court in Kumaran v. State of Kerala [2016 (4) KLT 718], Chandran v. State [2016(4) KLT 727] and Mukundan v. State of Kerala [2016(3) KLT 532] observed that, if there is an unexplained delay in investigating Abkari cases, the accused is entitled the benefit of doubt. The relevant portion of Kumaran's case (supra), is extracted hereunder:

¶49

“The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11)=2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and

¶50

CRL.A.No.2213 OF 2006

¶51

¶52

unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”

¶53

In this case, there is no explanation for the delay in conducting the investigation. Hence, in the light of the above dictum laid down by this Court, the accused is entitled the benefit of doubt.

¶54

Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 18-10-2006 in SC No. 395/2005 on the file of the Additional Sessions Judge, (Adhoc)-I, Manjeri Division is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled.

¶55

sd/-

¶56

P.V.KUNHIKRISHNAN

¶57

JUDGE

¶58

Raman v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raman v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Remaney Vs State of Kerala

Sunil Vs State of Kerala

Pradeep @ Kochumon Vs State of Kerala

Chandran Vs State

Sreedharan Vs State of Kerala

Sasikuamr @ Shaji Vs State of Kerala