Kerala High Court
Joseph @ Baby vs State Of Kerala on 2 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
CRL.A NO. 2212 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 366/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA, IDUKKI
APPELLANT/ACCUSED:
JOSEPH @ BABY
S/O GEORGE,ARACKAL VEEDU, PULICKATHADAM BHAGOM,
EDADU KARA, ILAPALLY VILLAGE.
BY ADVS.
SRI.C.M.TOMY
SRI.MATHEW SKARIA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV
SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A No.2212 of 2006
2
K.BABU, J.
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Criminal Appeal No.2212 of 2006
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Dated this the 2nd day of July, 2021
JUDGMENT
Aggrieved by the judgment dated 25-10-2006, passed by the
learned Additional Sessions Judge (Adhoc-II), Thodupuzha in
Sessions Case No.366/2004, the accused has preferred this appeal.
2. The appellant was accused No.2 and a Juvenile aged 12
years, was accused No.1 in F.I.R No.281/2002 of Kanjar Police
Station.
3. The trial court convicted the appellant (hereinafter referred
to as accused) for the offence punishable under Section 8(2) of the
Kerala Abkari Act.
4. The prosecution case is that on 19-11-2002 at 9.40 a.m., on
getting reliable information that illicit arrack was stored in a building
No.127 of Arakkulam Grama Panchayath at Pulickathadam, the
police party led by PW1, Sub Inspector of Police, Kanjar Police
Station, searched the building and the premises and detected illicit
arrack in a bottle inside the house and a can on the paramba. PW1
seized 450 ml. of arrack in a 750 ml. bottle and 35 litres of wash in a
Crl.A No.2212 of 2006
can from the possession of the accused.
5. After completion of investigation, final report was submitted
against the accused for the offences punishable under Sections 8(2)
and 55(g) of the Abkari Act before the JFCM-II, Thodupuzha. The
case was committed to the Sessions Court, Thodupuzha from where it
was made over to the Additional Sessions Court (Adhoc-II),
Thodupuzha. On appearance of the accused charges were framed
against him for the offences punishable under Sections 8(2) and
55(g) of the Kerala Abkari Act. The accused pleaded not guilty and
therefore, he came to be tried by the trial court for the aforesaid
offences.
6. The prosecution examined PW1 to PW5 and proved Exts.P1
to P7 and MO1 to MO12.
7. After closure of the evidence on behalf of the prosecution,
the statement of the accused under Section 313 Cr.P.C. was recorded.
He pleaded innocence. The trial court heard the matter under
Section 232 Cr.P.C. and found that there is evidence against the
accused and hence he was called upon to enter on his defence and to
adduce evidence, if any, he may have in support thereof. The trial
court, after hearing arguments addressed from both sides, found that
Crl.A No.2212 of 2006
the accused is guilty of offence under Section 8(2) of the Abkari Act
and he was convicted thereunder. He was sentenced to undergo
rigorous imprisonment for 1 year and to pay fine of Rs.1 Lakh.
8. Heard Sri.C.M.Tomy, learned counsel appearing for the
appellant/accused and Sri.M.S.Breez, learned Senior Public
Prosecutor appearing for the respondent/State of Kerala.
9. The learned counsel for the appellant raised the following
grounds to challenge the judgment of conviction and sentence.
(i) There is inordinate delay in the production of properties
allegedly recovered from the scene of occurrence before
the court.
(ii) The delay in conducting chemical analysis has not been
satisfactorily explained.
10. The learned public prosecutor submitted that prosecution
could well establish the offence against the accused.
11. The only point that arises for consideration is whether the
conviction entered and the sentence passed against the accused are
sustainable or not.
The Point
12. PW1, the Sub Inspector of Police, Kanjar, detected the
Crl.A No.2212 of 2006
offence. He has given evidence that, on 19-11-2002, on getting
reliable information that the accused was engaged in distilling arrack
at Pulickathadam he proceeded to the place of occurrence.
According to PW1, he searched the residence of the accused at 9.15
a.m. and found a gunny bag, on the south western corner of the
bedroom on the southern side of the house, containing a bottle filled
with illicit arrack. From the nearby abandoned land, situated about
200 meters from the residence of the accused, PW1 recovered two
aluminium vessels, a steel vessel and two kerosene stove, etc. He also
recovered a can containing 35 litres of wash. According to PW1,
before conducting search he had prepared a search memo and the
properties were recovered as per Ext.P1 search list. PW1 collected
samples from the arrack and wash and sealed them. He arrested the
accused and a boy aged 12 years who had pointed out the place where
the contraband articles were kept on the abandoned land. The
Juvenile was made Accused No.1 and the present accused was made
Accused No.2.
13. PW1 entrusted the properties and the accused to PW5, the
Inspector of Police, Kaliyar.
14. PWs 2 to 4, the independent witnesses, did not support the
Crl.A No.2212 of 2006
prosecution case. PW5, the Inspector of Police, Kaliyar, who was in
charge of the Inspector of Police, Kanjar produced the properties
recovered from the place of occurrence before the court on
25-11-2002. He submitted final report before the court on
21-05-2004.
15. The learned counsel for the accused submitted that though
the properties allegedly recovered from the scene of occurrence were
entrusted to PW5 on 19-11-2002, he produced the same before the
court only on 25-11-2002 and the delay in the production of the
properties before the court has not been explained. There is no
explanation from the part of PW5 as to the delay caused in the
production of the properties before the court.
16. In Ravi v. State of Kerala [2011 (3) KHC 121] on the
question of delay in the production of properties a Division Bench of
this Court held as follows:
"8. We, therefore, answer the reference as follows:
1. It is not necessary to produce the article seized under
S.34 of the Abkari Act before the Magistrate 'forthwith' either by
virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the
Abkari Act or the Abkari Manual. What is enjoined by the statute
is only that the seizure of the property should be reported
forthwith to the Court. But we hasten to add that the production of
the property before Court (wherever it is practicable) should also
take place without unnecessary delay. There should be
explanation for the delay when there is delayed production of the
property." (Emphasis supplied)
Crl.A No.2212 of 2006
The Division Bench held that the production of the properties should
take place without unnecessary delay and there should be
explanation for the delay when there is delayed production of the
property. In the instant case, there is no explanation for the delayed
production of the property. There is no evidence to show that these
properties remained in the safe custody of PW5 from 20-11-2002 to
25-11-2002. Unexplained delay in the production of the properties
including the bottles containing the sample would lead to the
conclusion that tampering with the samples could not be ruled out.
17. The samples collected reached the Chemical Examiner's
laboratory on 02-12-2002. The chemical examiner analysed the
sample only on 11-11-2003. The prosecution has not offered any
explanation as to the delay in the analysis of the samples. This Court
in Krishnadas v. State of Kerala [2019 KHC 191] had considered
a case in which the sample reached the laboratory in September
2003, which was subjected to analysis only in 2004. In that case, this
Court held that, in the absence of any explanation for the delayed
examination a suspicion arises and the benefit of which must go to
the accused. In the instant case also the delay in the analysis of the
sample remains unexplained. This delay raises a suspicion on the
Crl.A No.2212 of 2006
credibility of the results of analysis of the sample, the benefit of
which must go to the accused.
18. The court below failed to take into account the above
referred vital circumstances.
19. Resultantly, I hold that the accused is entitled to benefit of
doubt. The conviction and sentence passed against the accused are
not sustainable. In the result, the accused is acquitted of the charge
levelled against him. He is set at liberty.
The appeal is allowed as above.
Sd/-
K.BABU,
JUDGE
KAS
