Kerala High Court
Shajahan vs State Of Kerala on 30 July, 2025
Crl.R.P.No.283 of 2016
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2025:KER:57092
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947
CRL.REV.PET NO. 283 OF 2016
AGAINST THE JUDGMENT DATED 22.11.2013 IN SC NO.241 OF
2011 OF ASSISTANT SESSIONS COURT, KASARAGOD ARISING OUT OF
THE JUDGMENT DATED 30.11.2015 IN Crl.A NO.191 OF 2013 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD /
I ADDITIONAL MACT, KASARAGODE
REVISION PETITIONER/APPELLANT/ACCUSED:
SHAJAHAN
AGED 28 YEARS
S/O.ASHRAF, NEAR BEEMA PALLY, CHERIYATHURA,
MUTTATHARA VILLAGE, KAMALESHWARAM TALUK,
TRIVANDRUM NOW RESIDING AT QUARTERS OF
C.A.MOHAMMED, PANNIPPARA, MUTTATHODY VILLAGE,
KASARAGOD TALUK AND DISTRICT.
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,
ERNAKULAM 682 031. (O.R NO.26/2006 OF KASARAGOD
EXCISE RANGE, KASARAGOD DISTRICT)
OTHER PRESENT:
SRI. SANAL.P.RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 30.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.283 of 2016
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2025:KER:57092
P.V. BALAKRISHNAN, J.
......................................
Crl.R.P.No.283 of 2016
.........................................................
Dated this the 30th day of July, 2025
ORDER
Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner/accused under Section 8(2) of the Kerala Abkari Act.
2. The revision petitioner is the sole accused in SC No.241 of 2011 on the files of Assistant Sessions Court, Kasaragod.
3. The prosecution case is that on 26.05.2006 at about 06:30 p.m., the accused was found carrying a yellow plastic sack containing 100 packets of arrack, each having a capacity of 100 ml, near the water tank on the northern side of Bovikanam- Cherkala town public road, by PW1 and his patrol party.
4. In the trial court, from the side of the prosecution, PW1 to PW5 were examined and Exts.P1 to P11 documents were marked. When the accused was examined under Section 313 Cr.P.C., he denied all the incriminating circumstances appearing against him in evidence and contended that he is innocent. From the side of the accused DWs 1 and 2 were examined and Ext.D1 Crl.R.P.No.283 of 2016 3 2025:KER:57092 document was marked. The trial court, on an appreciation of the evidence on record, found the accused guilty and convicted him under Section 8(1) of the Kerala Abkari Act. The accused was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000 under Section 8(2) of the Kerala Abkari Act, with a default clause.
5. The accused carried the matter in appeal by filing Crl.Appl.No. 191 of 2013 before the Additional Sessions Court-I, Kasaragod. The said court vide judgment dated 30.11.2015, allowed the appeal in part and while upholding the conviction, modified and reduced the sentence to one of simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000 under Section 8(2) of the Kerala Abkari Act, with a default clause.
6. Since there was no representation for the revision petitioner, this Court appointed Smt. Sukanya S., as Amicus Curiae to assist this Court. Heard Smt.Sukanya S., the learned Amicus Curiae and Sri. Sanal P. Raj, the learned Public Prosecutor.
7. It is submitted by the learned Amicus Curiae that both the trial court and the appellate court have failed to appreciate the evidence in a proper perspective and has arrived at a wrong Crl.R.P.No.283 of 2016 4 2025:KER:57092 conclusion of guilt against the accused. She submitted that even though the offence was detected as early as on 26.05.2006, the investigation in this case commenced only on 12.11.2010, nearly after 4 years and the final report came to be filed only on 26.11.2010. According to the learned counsel, the afore unexplained delay itself is fatal to the prosecution case and therefore, the revision petitioner is entitled to get an order of acquittal. She further contended that after PW1 detected the offence, he has produced the accused, the sample bottle and the contraband articles in the Excise Range Office, Kasaragod and thereafter, the investigation was carried out by an Assistant Excise Inspector, who is incompetent to do so. According to the learned counsel, apart from Ext.P6 occurrence report, Ext.P7 property list and Ext.P8 forwarding note were also prepared by the Assistant Excise Inspector, who has no authority. Hence, she submitted that this revision petition is only to be allowed.
8. Per contra, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with the same. He argued that the officer who prepared Exts.P6 to P8 documents, was an Assistant Excise Inspector, who was in charge of the Excise Inspector and therefore, he is a person well within his competence to exercise Crl.R.P.No.283 of 2016 5 2025:KER:57092 all the powers vested under Section 40 to 53 of the Abkari Act. He also contended that the evidence of PW1 and PW5 regarding the detection, seizure, arrest of the accused, taking of sample, etc., are credible and cogent and the sample taken has reached the court in a tamper-proof condition. He further contended that the sample bottle was forwarded to the chemical analyst again, in a tamper-proof condition and Ext.P11 chemical analysis report shows that the article seized is nothing, but arrack. Hence he prayed that this revision petition may be dismissed.
9. The materials on record show that the prosecution is mainly relying upon the evidence of PW1 and PW5 to prove the detection, seizure, arrest of the accused and taking of sample from the spot. The evidence of PW1 and PW5, in one voice shows that on 26.05.2006, at about 06:15 p.m., they have intercepted the accused carrying a plastic sack in his hand. On inspecting the sack, they found 100 packets containing arrack each having a capacity of 100 ml. Thereafter, the accused was arrested by preparing Ext.P1 arrest memo and Ext.P4 arrest intimation was given to his mother. PW1 then collected a sample from three packets in a bottle having a capacity of 375 ml and thereafter, sealed and labelled the sample bottle and the sack containing the remaining contraband articles. The specimen of the seal was Crl.R.P.No.283 of 2016 6 2025:KER:57092 placed in Ext.P2 and Ext.P5 seizure mahazar was also prepared at the time. It is to be seen that even though PW1 and PW5 have been cross examined in extenso, nothing has been brought out to disbelieve their version regarding these aspects.
10. The evidence of PW1 further shows that after detecting the offence and performing the afore acts, the accused and the articles were forwarded to the Excise Range Office, Kasaragod and that the subsequent steps were taken by the Assistant Excise Inspector one V. Kunjiraman, who is no more. It is further reveals that it is the said Kunjiraman, who has prepared Ext.P6 occurrence report, Ext.P7 property list and Ext.P8 forwarding note and has produced the remaining articles before the Assistant Excise Commissioner.
11. As rightly pointed out by the learned counsel for the revision petitioner, the Assistant Excise Inspector has been empowered to exercise all the powers and to perform all the duties of an Excise Inspector under Sections 40 to 53 of the Abkari Act, only as per SRO No.361 of 2009. Before the promulgation of SRO No.361 of 2009, it is only the officers, not below the rank of an Excise Inspector, who are vested with the afore powers. Since, in the instant case, the detection of the offence is in the year 2006, I have no hesitation to find that Sri. Crl.R.P.No.283 of 2016 7 2025:KER:57092 Kunjiraman, the Assistant Excise Inspector, has no authority to register Ext.P6 OR and prepare Exts.P7 and P8 documents referred afore. The contention of the learned Public Prosecutor that the said Kunjiraman was holding charge of the Excise Inspector, at the relevant time also cannot be sustained in the absence of any documents having been produced from the side of the prosecution to prove the said fact.
12. Be that as it may, it is also very relevant to note that the evidence of PW4, who is the investigating officer in this case shows that he has taken over the investigation only on 12.11.2010. It also shows that it is thereafter, on 24.11.2010 he had prepared Ext.P10 scene mahazar and after completing investigation has filed the final report on 26.11.2010. The materials on record further show that it is during this interregnum, PW4 has recorded the statements of PW1 to PW3. There is absolutely no explanation forthcoming from the side of the prosecution regarding this inordinate delay in conducting the investigation and laying the charge. As held by this Court in the decisions in Moothedath Sivadasan and another v. State of Kerala [2021 KHC 3232], Gangadharan v. State of Kerala [2024(1) KHC 111] and Kumaran P. v. State of Kerala and another [2016(5) KHC 632], the considerable Crl.R.P.No.283 of 2016 8 2025:KER:57092 unexplained delay in conducting the investigation and in laying the final report itself is fatal to the prosecution case and is a reason to grant the benefit of doubt to the accused.
13. In the light of the afore discussions, I find that both the trial court and the appellate court erred in appreciating the evidence on record and in reaching a conclusion of guilt against the accused. This in turn means that this revision petition is only liable to be allowed, thereby, setting aside the conviction and sentence against the revision petitioner/accused.
In the result, this revision petition is allowed as follows;
The conviction and sentence of the revision petitioner/accused under Section 8(1) and (2) of the Abkari Act in SC No.241 of 2011 by the Assistant Sessions Court, Kasaragod and as confirmed in Crl.Appl.No.191 of 2013 by the Additional Sessions Court-I, Kasaragod are set aside and the revision petitioner/accused is set at liberty.
Sd/-
P.V. BALAKRISHNAN, JUDGE Dxy