Allowed

Chakrapani @ Unnikrishnan v. State of Kerala

Kerala HC3 Mar 2021CRL.A/866/2007

Case brief

AI extract

What is this about?

The Court allowed the criminal appeal and acquitted the appellant guilty of an offence under Section 55(a) of the Abkari Act due to unexplained delay in investigation and lack of proof regarding tamper-proof despatch of contraband to the chemical examiner.

What did the court decide?

Appellant acquitted and set at liberty; judgment of Additional Sessions Judge set aside; bail bond cancelled.

Chakrapani @ Unnikrishnan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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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 T.R.RAVI

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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CRL.A.No.866 OF 2007

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AGAINST THE ORDER/JUDGMENT IN SC.NO.356/2004 DATED 27-04-2007 IN THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC)- I, KALPETTA

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APPELLANT/ACCUSED:

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CHAKRAPANI @ UNNIKRISHNAN S/O RAMAN, MUTTIL, WAYANAND DISTRICT.

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA THROUGH THE EXCISE INSPECTOR, KALPETTA EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM.

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R1 BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.866 OF 2007

JUDGMENT

Dated this the 3^rd day of March 2021

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The accused in SC.No.356/2004 has filed this appeal being aggrieved by the judgment dated 27.04.2007 of the Additional Sessions Judge (Adhoc) -I, Kalpetta finding the appellant guilty of offence under Section 55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 Lakh and in default of payment of fine to undergo rigorous imprisonment for six months.

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The case of the prosecution is that on 10.08.2003 at about 11.00 p.m, PW1 the Excise Inspector and party who were on patrol duty on the road proceeding to Public Health Centre, Vazhavatta saw the accused coming back with a black plastic can in his hand. The Excise officials stopped the accused and on examination of the plastic can, it was found that it contains 5 litres of illicit arrack. The investigation was completed and the charge was laid before the Chief Judicial Magistrate, Kalpetta, who committed the case to Court of Sessions, Kalpetta on 29.10.2004. The case was thereafter made over for trial to the Additional Sessions Judge (Adhoc) – I, Kalpetta.

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On the side of the prosecution, PW1 to PW5 were examined and ExtsP1 to P7 were marked. MO1 was identified by the witnesses.

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CRL.A.No.866 OF 2007

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After consideration of the evidence on record, the court below returned the verdict that the accused is guilty of the offence charged and imposed the sentence aforesaid. It is aggrieved by the above judgment that this appeal is filed.

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Heard Shri.Sunny Mathew on behalf of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State.

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The counsel for the appellant put forth two contentions which are sufficient for allowing the appeal. The first contention is that there is considerable delay in completing the investigation and the counsel points out that the incident occurred on 10.08.2003, but PW5 took up the investigation only on 01.03.2004. Apart from this, the counsel also points out that Ext.P5 which is the forwarding note whereby the collected sample was sent for chemical examination does not bear a date along with the signature of the Magistrate which is crucial for proving the prosecution case. The counsel relies on the decision of this Court in Kumaran v. State of Kerala reported in 2016(4) KLT 718 . The counsel particularly refers paragraphs 6 and 7 of the judgment which are extracted below;

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“6. 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 (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

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CRL.A.No.866 OF 2007

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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 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.

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There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”

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In the case on hand, the facts are almost similar as in Kumaran (supra) . In this case also there is a delay of seven months in taking up the investigation for which there is absolutely no explanation from the side of the prosecution. This has been stated as a reason which entitles the accused for the benefit of doubt particularly when the quantity of the contraband involved is only 5

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CRL.A.No.866 OF 2007

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litres. So also in the judgment extracted above, this Court has specifically held that the Magistrate ought to have written the date on which the initial was made and since the same was not done, there is scope for a doubt regarding the exact date on which the articles had been sent to the chemical examiner.

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I have gone through the records and I find from Ext.P5 which is the forwarding note that the Magistrate has not written the date along with his signature. I however notice that the seal of the Court is put on the top left side of the document which shows the date as 11.08.2003. However, that cannot be taken as the date on which the Magistrate had signed the forwarding note. There is always a possibility that the seal was affixed when the document was received in Court because there is no other indication for having received the document in Court. Moreover, the counsel for the appellant relies on the judgment of this Court in Crl.Appeal No.2213/2006 dated 22.02.2021 wherein, this Court had considered a situation where a date had been written along with the initial but had expressed a doubt that even such writing of the date may not be sufficient to prove the fact that the forwarding note was dispatched on that date with the Chemical Examiner.

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I find considerable force in the contentions raised by the

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CRL.A.No.866 OF 2007

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counsel for the appellant. The facts available in this case are similar to the one which was considered by this Court in Kumaran (supra) and as regards the writing of the date is concerned, not only is this a case where the Magistrate has not noted the date along with his initial but also a case where there is no indication as to when the materials were dispatched to the Chemical Examiner.

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In the circumstances, I find that the accused is entitled to the benefit of doubt and the prosecution has to fail. The judgment of the Additional Sessions Judge (Adhoc) -I, Kalpetta in SC.No.356/2004 is set aside and the appellant is acquitted and set at liberty. Bail bond if any executed by the appellant or on his behalf is cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Chakrapani @ Unnikrishnan v. State of Kerala

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Chakrapani @ Unnikrishnan v. State of Kerala

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