Kerala High Court
Alakkadan Suresh vs State Of Kerala on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
CRL.A.No.2838 OF 2008
AGAINST THE JUDGMENT IN SC 241/2004 DATED 18-10-2008 OF
ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY
APPELLANT/ACCUSED:
ALAKKADAN SURESH
S/O RAGHAVAN,
KALLAMKUNNUMMAL VEEDU,
THOLAMBRA AMSOM DESOM,
THALASSERY TALUK.
BY ADV. SRI.C.P.PEETHAMBARAN
ADV.SHYNA P.A.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SRI.P.K.BABU, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.2838/08 -:2:-
JUDGMENT
Dated this the 23rd day of February, 2021
Appellant challenges the conviction and sentence imposed on
him by judgment dated 18.10.2008 in S.C. No.241 of 2004 on the files
of the Additional Sessions Judge, Adhoc-III, Thalassery. By the
impugned judgment, the accused was found guilty for the offence
under Section 8(2) of the Abkari Act and was sentenced to undergo
rigorous imprisonment for a period of 1 year and to pay a fine of
Rs.1,00,000/- and in default of payment of fine to undergo simple
imprisonment for one month.
2. The prosecution case was that on 30.12.1999 at 5.15 a.m., the
accused was found possessing five litres of illicit arrack and after
seizure of the contraband and arrest of the accused by PW1, a crime
was registered by PW4, Excise Inspector, and after investigation by
PW5, final report was filed arraying the accused for having committed
the offence under Sections 8(1) and 55(a) of the Abkari Act. The
learned Magistrate on noticing that the case was one exclusively triable
by court of sessions, committed the case for trial to the Sessions Court,
Thalassery.
3. In order to prove the prosecution case, PW1 to PW5 were
examined and Exts.P1 to Ext.P7 were marked, apart from MO1.
4. After analysing the evidence adduced in the case, learned
Sessions Judge found the accused guilty and sentenced him to
imprisonment and fine, as mentioned above.
5. I have heard Adv.Shyna P.A., on behalf of
Adv.C.P.Peethambaran, learned counsel for the appellant as well as
Sri.P.K.Babu, learned Senior Public Prosecutor.
6. Learned counsel for the appellant submitted that the
prosecution had failed to prove the case beyond reasonable doubt. In
support of the said submission, it was argued that though the alleged
contraband was detected and seized at 5.15 a.m. on 30.12.1999, Ext.P5
reveals that the same was produced before the court only on 4.1.2000.
PW4, in his evidence, has not explained this long delay of 5 days.
Relying upon the decision in Ravi v. State of Kerala (2011 (3) KLT
353), learned counsel canvassed that possibility of tampering with the
contraband cannot be ousted and in such cases benefit of doubt ought
to be granted to the accused. It was further argued that the independent
witnesses adduced by the prosecution turned hostile and other than the
official witnesses, none was available to prove the prosecution case,
which also creates doubt on the prosecution version. The learned
counsel further submitted that it is evident from the deposition of PW4
that the label on MO1 when marked in evidence before court was seen
missing, which certainly creates a doubt on the prosecution case.
7. Controverting the contentions raised, the learned Senior
Public Prosecutor submitted that the delay of 5 days is not a crucial
delay so as to warrant interference by this Court. The attention of this
Court was invited by the learned Public Prosecutor to the deposition of
PW4 wherein he had stated that the contraband was retained by him till
4.1.2000, which certainly is a sufficient explanation. He also argued
that even though the independent witnesses had turned hostile, the
same will not erode the sanctity of the prosecution case since the other
witnesses have convincingly spoken in time with the prosecution case.
The absence of a defence of any ulterior motives on the official
witnesses to frame a false case against the accused was also pointed
out as a factor supporting the prosecution case. It was also submitted
that absence of the label on MO1 at the time of marking in evidence is
not detrimental since the label was present when MO1 was produced in
court.
8. I have considered the rival contentions and have perused the
records. I have also gone through the evidence adduced.
9. It is seen that the contraband was seized on 30.12.1999 at 5.15
a.m.. However, the property list was prepared only on 31.12.1999.
Curiously there is no explanation of any nature given by any of the
prosecution witnesses for this delay from 30.12.1999 till 31.12.1999 in
preparing the property list. It is also seen from Ext.P5 that even though
the property list was prepared on 31.12.1999, the same was produced
before court only on 4.1.2000. The requirement of producing the
property seized, without unnecessary delay was explained by a
Division Bench of this Court in Ravi v. State of Kerala (2011 (3)
KLT 353).
10. When the statute insists upon production of the property
without delay, it is essential that the same must be done within the
limits of practicality and in the event of any delay occurring, the same
is to be explained for the satisfaction of the court. If the delay in
producing the property seized is satisfactorily explained then, the delay
by itself may not be detrimental to the prosecution case. As mentioned
in Vikraman v. State of Kerala (2007 (1) KLT 1010) the delay by
itself cannot be regarded as wholly fatal, if it is reasonably explained.
11. In this context it may be apposite to mention that no
explanation of any nature has been given by PW4 or PW5 for the delay
except for a bald statement that till the property was produced in court
the same was retained by PW4 himself. According to me, in the nature
of the case and the evidence adduced, the statement given above by
PW4 cannot be regarded as an explanation at all.
12. Assuming for a moment that the statement made by PW4
that he retained the contraband till it was produced in court is a
sufficient explanation, I am of the view that even then the prosecution
case has its own demerits. The label fixed on MO1, as stated by PW4,
was not seen present when MO1 was marked in evidence. There was
nothing to indicate that when MO1 was offered as substantive evidence
in court, it was the same contraband that was seized from the accused
or that the sample that was taken and sent for analysis was in fact taken
from MO1. There is nothing to prove that MO1 was the contraband
that was seized from the accused on 30.12.1999. This is an instance
which creates doubt on the prosecution case.
13. Even though the independent witnesses had turned hostile to
the prosecution case, that by itself is not a reason to doubt the
prosecution case in its entirety, though the same may be a circumstance
that can be taken into reckoning while considering the entirety of the
case.
14. On an appreciation of the evidence adduced, I am of the
view that the cumulative effect of the delay in producing the
contraband before court, absence of a proper explanation for the said
delay, absence of label on MO1 and the independent witnesses turning
hostile, all put together, creates doubt on the prosecution story, thereby
entitling the accused to be given the benefit of doubt. I therefore find
that the accused is entitled to the benefit of doubt and is liable to be
acquitted.
15. In the above circumstances, the conviction and sentence
imposed on the accused in S.C. No.241 of 2004 on the files of the
Additional Sessions Judge, Adhoc-III, Thalassery, is hereby set aside
and the appellant is acquitted. The bail bonds, if any, executed 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
