Kerala High Court
Selvan vs State Of Kerala on 3 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
CRL.A.No.2473 OF 2007
AGAINST THE JUDGMENT IN SC 641/2006 DATED 07-12-2007 OF IV
ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
AGAINST CP 50/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
DEVIKULAM
APPELLANT/ACCUSED:
SELVAN,
S/O. SUNDARAN CHETTY,
WARD NO.V/138 A,
VATTAVADA PANCHAYAT, DEVIKULAM TALUK,
IDUKKI DISTRICT.
BY ADV. SRI.JOICE GEORGE
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SRI.DHANIL M.R., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.2473/07 -:2:-
JUDGMENT
Dated this the 3rd day of February, 2021
Appellant challenges the conviction and sentence imposed by
judgment dated 7.12.2007 in S.C. No.641 of 2006 on the files of the
IV Additional Sessions Court (Ad hoc-II) Thodupuzha. By the
impugned judgment, the accused has been found guilty for the
offence under Section 8(1) of the Abkari Act and has been sentenced
to undergo rigorous imprisonment for one year and to pay fine of
Rs.1,00,000/- in default to undergo rigorous imprisonment for three
months.
2. The prosecution case was that the accused was found in
possession of 3.100 litres of arrack in 31 plastic covers containing
160 ml each from the house bearing No.V/138 A at Koviloor Village.
The accused was arrested on 21.8.2000 and he was produced
before the leaned Magistrate on the next day itself i.e.,22.8.2000.
After completing investigation, final report was filed and on noticing
that the case was one exclusively triable by court of sessions, the
learned Magistrate committed the case for trial to a Court of Sessions
as per Section 209 of Cr.P.C.
3. In order to prove the prosecution case, PWs 1 to 5 were
examined and Exts.P1 to P8 were marked, apart from the material
object MO1 series.
4. After appreciating the evidence adduced in the case,
learned Sessions Judge found the accused guilty of the offence
alleged and sentenced him to imprisonment and fine, as mentioned
earlier.
5. I have heard Adv.Rajeev Jyotish George, learned counsel
for the appellant as well as Adv.Dhanil M.R., learned Public
Prosecutor.
6. The learned counsel for the appellant submitted that even
though the offence was detected on 21.8.2000 and the accused was
arrested along with the alleged contraband on the said day, curiously,
the forwarding note was prepared and the sample was forwarded for
chemical analysis only on 21.8.2003. Learned counsel for the
appellant, referring to the decision in Suresh v. Excise Inspector,
Pathanamthitta and Another (2019 (2) KLD 206) submitted that the
delay in forwarding the sample for analysis, in the absence of any
explanation, entitles the accused to obtain the benefit of doubt in the
prosecution case. The learned counsel further submits that even
otherwise, the possession of the contraband with the accused has
not been proved by the prosecution since the ownership or
possession of the house by the accused, from where the contraband
articles were seized, was proved by the prosecution. Learned
counsel invited my attention to the decisions in Gireesh @ Manoj v.
State of Kerala (2019 (4) KLT 79) and Suresh v. State of Kerala
(2020 (4) KLT 384).
7. The learned Public Prosecutor on the other hand submitted
that it was not automatic that every delay would render the
prosecution case doubtful. In cases where the prosecution explains
the reason for delay, no automatic application of the principle of the
benefit of doubt ought to be given to the accused, so contended by
the learned Public Prosecutor. He further submitted that in the
instant case, the prosecution had attempted to explain the delay. He
also invited my attention to Section 64 of the Abkari Act and
canvassed for the proposition that statutory presumption comes to
the aid of the prosecution and in such circumstances, it is not the
burden of the prosecution to prove the ownership of the house since
the presumption under Section 64 gets attracted in the instant case.
8. I have considered the rival contentions. Ext.P8 is the
forwarding note prepared by the Excise Inspector. Ext.P8 is dated
21.2.2003. It bears the sample seal also. Ext.P8 was marked
through PW5. The contraband article was seized on 22.8.2000. A
perusal of the deposition of PW5 shows that no explanation of any
nature has been provided by him as to the reason for the long delay.
When the delay in forwarding the sample for analysis is explicit from
the evidence adduced before the court, there is a necessity for the
prosecution to explain the delay. The burden is entirely upon the
prosecution to explain the reason for the delay, which is explicit from
the records and from the evidence adduced. There is a burden cast
upon the prosecution to explain the delay and in the instant case, the
prosecution failed to explain the long delay of two years and six
months.
9. Further, the prosecution case was that the contraband liquor
was seized from the house of the accused. Surprisingly, no evidence
has been adduced by the prosecution to prove that the house from
where the contraband was seized, belonged to the accused. Except
for a unilateral statement in the mahazar, the prosecution had not
adduced any evidence to prove the ownership of the house from
where the contraband was seized. It is also material to note in this
context that PWs 1 and 2, who are the mahazar witnesses, had
turned hostile in the case. In their evidence they had stated that they
were unaware of the seizure of the alleged contraband and that they
had put their signatures only at the excise office. In such
circumstances, I am compelled to conclude that the prosecution had
failed to prove the ownership of the house from where the
contraband article was seized.
10. The effect of failure to prove the ownership of the house or
the building from where the contraband articles were seized have
been considered by this Court in several decisions including those
cited by the learned counsel for the appellant. Failure to prove the
ownership of the house from where the contraband was seized is a
lacuna in the prosecution case, as held in Gireesh @ Manoj v. State
of Kerala (2019 (4) KLT 79) and in Suresh v. State of Kerala (2020
(4) KLT 384). In the aforesaid circumstances, I am of the view that
the prosecution had failed to prove the case beyond reasonable
doubt. The accused is also entitled to be given the benefit of doubt
in the circumstances that arises in the case.
In view of the above, the judgment dated 7.12.2007 in
S.C. No.641 of 2006 on the files of the IV Additional Sessions Court
(Ad hoc-II) Thodupuzha, is hereby set aside and the appellant is
acquitted. The bail bonds, if any, furnished shall stand cancelled and
fine amount, if any, remitted shall be refunded forthwith.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
