Kerala High Court

K.Kumaran vs State Of Kerala on 6 October, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                      CRL.A NO. 983 OF 2014
 AGAINST THE JUDGMENT IN SC 316/2011 OF ADDITIONAL DISTRICT
                 & SESSIONS COURT - I, KASARAGOD
APPELLANT/ACCUSED:

         K.KUMARAN
         AGED 48 YEARS
         S/O LATE KALLALAN, NAYIKKAYAM, BELUR VILLAGE,
         HOSUDRG TALUK, KASARAGOD DISTRICT

         BY ADVS.
         SRI.RAHUL SASI
         SMT.NEETHU PREM



RESPONDENTS/COMPLAINANT & STATE:

    1    STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
         OF KERALA, KOCHI - 31.

    2    EXCISE INSPECTOR
         HOSDURG EXCISE RANGE, PIN - 673 001.


OTHER PRESENT:

         SRI ARAVIND V MATHEW-PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
29.09.2021, THE COURT ON 6.10.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.983/14

                               -:2:-




                         J U D G M E N T

Dated this the 6th day of October, 2021

This is an appeal u/s 374(2) of the Code of Criminal

Procedure against the judgment of conviction and sentence

passed by the Additional Sessions Court- I, Kasaragod (for short,

'the court below') in SC No.316/2011 dated 4 th September, 2014.

2. The accused/appellant faced trial for an offence

punishable u/s 8(1) and (2) of the Abkari Act. The prosecution

case in short is that, on 3/6/2009, at about 7.30 a.m., the accused

was found in possession and transit of 5 litres of illicit arrack in a

white plastic can of 5 litres capacity through the road passing on

the western side of residential house bearing No.VII/575 of Kodam

Belur Panchayat in contravention of the Abkari Act and the Rules.

3. PW4, the Assistant Excise Inspector of Hosdurg Excise

Range, along with PW1, the Preventive Officer, while conducting

patrolling duty on 3/6/2009 at about 7.30 a.m., found the accused

walking through Parappa road carrying a white plastic can. They

intercepted the accused and a white plastic can filled with 5 litres Crl.Appeal No.983/14

of illicit arrack was seized. The accused was arrested at the spot.

The sample of arrack was taken in a bottle. It was sealed, packed

and labelled in the presence of the witnesses who were examined

as PW2 and PW3. Ext.P1 mahazar was prepared at the spot.

Ext.P2 arrest memo was prepared at the time of arresting the

accused. PW4 took the accused as well as the seized contraband

article to Excise Range Office and registered crime against the

accused. Ext.P6 is the crime and occurrence report. The sample

was sent for chemical analysis and after the analysis, report was

received which was marked as Ext.P13. PW5, the Assistant Excise

Inspector of Hosdurg conducted the investigation. After

completing the investigation, he filed final report before the

learned Magistrate. The learned Magistrate after complying with

the statutory formalities committed the case for trial to the Court

of Sessions.

4. The accused appeared before the court below. After

hearing both sides, the court below framed charge against the

accused u/s 8(1) and 8(2) of the Abkari Act. The charge was read

over and explained to the accused who pleaded not guilty. Crl.Appeal No.983/14

5. The prosecution examined PWs 1 to 5 and marked

Exts.P1 to P13. On completing the prosecution evidence, the

accused was questioned u/s 313 of Cr.P.C. He denied all the

incriminating circumstances brought against him during

evidence. No defence evidence was adduced. After trial, the

court below found the accused guilty u/s 8(1) and 8(2) of the

Abkari Act. He was sentenced to undergo simple imprisonment

for a period of one year and to pay a fine of `1,00,000/-, in

default, to suffer simple imprisonment for six months as per the

impugned judgment. The said judgment is under challenge in this

appeal.

6. I have heard the learned counsel for the appellant and

the learned Public Prosecutor.

7. The learned counsel for the appellant assailed the

finding of guilt passed against the appellant contending that

there is no acceptable legal evidence to prove the guilt of the

accused other than the interested testimony of official witnesses.

The counsel further submitted that there is non compliance of

S.53A of the Abkari Act. The counsel also submitted that there is Crl.Appeal No.983/14

long delay in completing the investigation and filing the final

report.

8. PW4 is the Assistant Excise Inspector of Hosdurg

Excise Range who detected the offence. PW1 is the Preventive

Officer who accompanied PW4 at the time of detection. PW2 and

PW3 are independent witnesses who attested Ext.P1 seizure

mahazar. PW5 is the then Assistant Excise Inspector who

conducted the investigation and filed final report. PW1 and PW4

deposed that on 3/6/2009 at 7.30 a.m., they were conducting

patrol duty and when they reached at Naikayam of Belur Village,

the accused was found walking carrying a can in his hand. They

intercepted the accused and the can was seized. When it was

opened, it was found that it contained illicit arrack. They further

deposed that PW4 drew sample of 300 ml in 375 ml bottle and

the sample bottle was properly labelled and sealed. He prepared

Ext.P1 mahazar at the spot. He further deposed that, thereafter,

he went to Excise Range Office along with the accused and the

contraband articles and Ext.P6 crime and occurrence report was

registered. On the same day, he produced the seized article at Crl.Appeal No.983/14

the court as per Ext.P7 property list. On the very same day, the

sample was sent for chemical analysis as evident from Ext.P8

forwarding note. Ext.P13 is the chemical analysis report. It has

been marked through PW5 who conducted the investigation.

Ext.P13 would show that the sample contained 28.17% by

volume of ethyl alcohol.

9. Even though PW1 and PW4 were cross-examined in

length, nothing tangible has been brought out to discredit their

testimony. The search, seizure and arrest of the accused were

amply proved through the evidence of PWs 1 and 4. The defence

has not been able to cause any dent to their evidence. The

learned counsel for the appellant submitted that no reliance can

be placed on the testimony of PWs 1 and 4 since they are official

witnesses and the two independent witnesses (PW2 and PW3)

examined did not support the prosecution. It is trite that the

statement of witness of a police department or excise

department cannot be rejected only on the ground that the

independent witnesses examined on behalf of the prosecution did

not support the case of the prosecution and turned hostile and if Crl.Appeal No.983/14

no infirmity is found in the statement of the witnesses examined

on behalf of the prosecution belonging to the police or excise

department, reliance can be placed on the testimony of such

witnesses for basing the conviction. PW1 and PW4 credibly

deposed about the arrest of the accused and seizure and

sampling of the contraband. The sequence of events were spoken

by them in a fairly and inspiring manner. PW1 and PW4

consistently deposed that 300 ml sample was drawn in a bottle of

375 ml at the place of occurrence and the sample was properly

sealed and labelled. The testimony of PWs 1 and 4 are not shown

to suffer from any infirmity as to justify an approach with intrinsic

doubt and suspicion. PW2 and PW3 are witnesses to Ext.P1

mahazar. They admitted that they affixed the signature in Ext.P1.

But they deposed that they were made to sign in Ext.P1 by the

police from elsewhere. From the evidence of PW2 and PW3, it is

clear that they were attempting to cover up the truth and

tendering the evidence in favour of the accused to the extent

possible. Therefore, there is no reason to discard the evidence of

PW1 and PW4 only on the ground that they are excise officials Crl.Appeal No.983/14

and, non official witnesses, PW2 and PW3, did not support the

prosecution case. In these circumstances, I am of the view that

the evidence of PW1 and PW4 regarding the recovery of the

contraband article from the possession of the accused, sampling

and the arrest of the accused at the time and place as alleged by

the prosecution can safely be accepted.

10. The evidence of PWs 1 and 4 gets corroboration from

Ext.P1 mahazar prepared at the spot. The evidence on record

would show that the sample drawn was properly packed, sealed

and labelled and it reached the court and sent for analysis on the

same day itself. The sample was in a tamper proof condition as

evident from Ext.P7 property list and Ext.P8 forwarding note.

Ext.P13 chemical analysis report would show that the seals of the

packets of the bottle were intact and tallied with the sample seal

provided. Ext.P13 further shows that the sample received for

analysis was clear and colourless liquid and that it contained

28.17% by volume of ethyl alcohol.

11. The learned counsel for the appellant submitted that

there is violation and non compliance of the mandates laid down Crl.Appeal No.983/14

in S.53A of the Abkari Act. According to the counsel, Ext.P9

inventory was prepared by PW4, the Assistant Excise Inspector

who is not a competent officer. The counsel also submitted that

Ext.P12 eye sketch was prepared by PW5, the Abkari Officer who

conducted the investigation and not by a revenue official. By

virtue of SRO No.361/2009 dated 8/5/2009, PW4 is competent to

act as Abkari Officer. The oral evidence of PW4 shows that the

remaining quantity of the arrack was produced before the Deputy

Excise Commissioner and the inventory list was prepared. A

perusal of Ext.P9 coupled with the evidence of PW4 would show

that even though it was prepared by PW4, it was signed by

Deputy Excise Commissioner, who is admittedly an authorised

officer. Ext.P9 would further show that the Magistrate has

certified the correctness of the inventory on 9/10/2009.

Therefore, the argument by the learned counsel for the appellant

that there is non compliance of S.53A must fail. It is true that

Ext.P12 eye sketch was not prepared by a revenue authority. It

was prepared by PW5. When PW5 was cross-examined, even no

suggestion was put against the genuineness of Ext.P12. Even if Crl.Appeal No.983/14

Ext.P12 is discarded, the evidence of PW1 and PW4 and the other

evidence on record would clearly prove the place of occurrence.

The fact that Ext.P12 was not prepared by a revenue official is

insignificant. The learned counsel for the appellant lastly

submitted that there is undue delay in recording the statement of

witnesses, completing the investigation and filing final report, the

benefit of which should go to the accused. The detection was on

3/6/2009. The final report was filed on 11/4/2011. The Apex

Court in Ranbir and Others v. State of Punjab (AIR 1973 SC

1409) has held that the delay in examining a witness during

investigation is material only if it is indicative and suggestive of

some unfair practice by the investigating agency for the purpose

of introducing a got up witness to falsely support the prosecution

case. This has been reiterated by the Apex Court in Ganesh

Bhavan Patel v. State of Maharashtra (AIR 1979 SC 135) and

it was held thus:

"Delay may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking Crl.Appeal No.983/14

time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced."

Relying on these decisions, the Single Bench of this Court in

Santhosh T.A. and Another v. State of Kerala (2017 (5) KHC

107) has held that for the Court to take notice of the delay in

recording statements of witnesses, it is necessary for the defence

to question the investigating officer about it so that he may give

an explanation for it. If that is not done, the Court will ignore the

delay. Absolutely no such question was put to the investigating

officer. The appellant has no case that the investigating officer

was deliberately delaying the investigation with a view to decide

about the shape to be given to the case and the eyewitnesses to

be introduced. Therefore, the delay in recording the statement of

the witnesses and completing the investigation cannot be said to