Mani vs State Of Kerala
2021 Latest Caselaw 19370 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                          CRL.A NO. 1637 OF 2007

  AGAINST THE JUDGMENT IN SC 509/2006 OF ADDITIONAL SESSIONS JUDGE,
         FAST TRACK COURT NO.III (ADHOC), MANJERI, MALAPPURAM
APPELLANT/ACCUSED:

           MANI,S/O. KUNNUMMOLTHODI KORAPPAN, ELAMKUR AMSOM,
           MANJAPATTA DESOM,, MALAPPURAM (DT).

           BY ADV T.K.AJITH KUMAR



RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REP. BY THE EXCISE INSPECTOR, MANJERI RANGE, MALAPPURAM
           DIST,, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
           ERNAKULAM.

           BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

           SRI SANGEETH RAJ (PP)




THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1637/2007                        2

                                 JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/accused in S.C.No.509/2006 on the file of the

Additional Sessions Court, Fast Track Court No.III (Adhoc), Manjeri in a

prosecution under Section 55(g) of the Abkari Act.

2. The gist of the prosecution case is that on 27.12.2004 at about

5.30 p.m., the appellant/accused was found carrying 10 litres of wash in a

barrel at Manjappatta Gothamp road near to the ICS English Medium School

situated at Thrikkalangode Panchayath in Elankur Taluk, Ernad Taluk in

violation of the provisions of the Abkari Act. It is, therefore, alleged that the

appellant/accused committed the offence under Section 55(g) of the Abkari

Act. Following investigation of the case, a final report was filed before the

Judicial First Class Magistrate Court-I, Manjeri. The same was committed to

the Sessions Court, Manjeri and was finally made over to the Additional

Sessions Judge, Fast Track Court No.III, (Adhoc), Manjeri for trial and

disposal. Charges were framed for the offence under Section 55(g) of the

Abkari Act. On the appellant/accused pleading not guilty, the prosecution

examined PWs 1 to 4, marked Ext.P1 to P8 documents and identified material

object (Mo1), the plastic barrel in which the wash was being allegedly carried

by the appellant/accused. On the closure of the prosecution evidence, the

appellant/accused was questioned under Section 313 Cr.P.C., where he denied

all incriminating material against him. Though the accused was called upon

to tender defence evidence, no defence evidence was let in. On an appreciation

of the evidence tendered by the prosecution, the trial Court came to the

conclusion that the appellant/accused was guilty of the offence under Section

55(g) of the Abkari Act and therefore, convicted him and sentenced him to

undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh

and in default of payment of fine, to undergo imprisonment for another six

months. Set off as permissible in law was allowed.

3. Sri. T.K.Ajith Kumar, the learned counsel appearing for the

appellant/accused would submit that, apart from other points, the appeal is

liable to be allowed on a short point that there was inordinate and

unexplained delay in the completion of the investigation. He submits that

though the incident was on 27.12.2004, the final report was filed before the

Magistrate Court only on 27.10.2006. He refers to the evidence of PW4 to

show that there was no explanation whatsoever for the delay in completion of

investigation. He says that the mandate of Section 50 of the Abkari Act was

violated in this case. He relies on the judgment of this Court in Krishnan H.

v. State; 2015(1) KHC 822 and Cheruvayi Mukundan and another v.

State of Kerala; 2016 KHC 717 to contend that where there is inordinate

and unexplained delay in completion of investigation, that by itself is a ground

to acquit the persons accused of abkari offences.

4. I have heard the learned Public Prosecutor also.

5. In Krishnan H. (supra), it was held:

"11. The alleged occurrence was on 04-11-1999. PW1 handed over the accused, contraband and the records to PW2 on that day itself. PW2 was the Excise Inspector, Excise Range Office, Hosdurg, at that time. So, he was a competent Abkari Officer to conduct investigation of this case. Why he had not conducted investigation? The prosecution has not given any explanation as to why PW2 had not conducted investigation. Thereafter, when the investigation had taken place? PW3 stated that he had taken over the investigation of this case on 30-6-2000, i.e., after a period of about 8 months. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. Here, in this case, the Crl. Appeal No.450 of 2004 -14- long delay in conducting the investigation is writ large. The prosecution has not offered any explanation for this inordinate delay in conducting the investigation. This aspect of the matter also cannot be brushed aside.

In Cheruvayi Mukundan (supra), this Court held as follows:-

"14. No explanation has been offered for this extraordinary delay in starting the investigation and sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, the entire report which afforded sufficient time to the prosecution to introduce improvements and embellishments and to set up a distorted version of the occurrence. This suspicion hardens into a definite possibility when the case made in court have no independent support. A perusal of the investigation conducted by PW3 shows that he has not given any care to comply with the directions under the statute. The delay of two years in conducting investigation create a doubt in the credibility of the prosecution case. Moreover, no independent corroboration to the alleged seizure. The Crl. Appeal No.1835 of 2005 14 Apex Court recently held that when the provisions of the statute are strict and the punishment is very high, more care and caution is necessary. Hence the provisions of the Abkari Act has to be interpreted in the strict sense. The trial court convicted the accused without considering

the legal infirmities in connection with the seizure. However, the conviction and sentence under Sec.8(2) of the Abkari Act are set aside and accused is acquitted and set at liberty. If any amount is deposited by the accused in the trial court it shall be reimbursed to the 2nd appellant.

6. It is clear from the records of this Court that, though the incident

was detected on 27.12.2004, the final report was filed only on 27.10.2006.

The evidence of PW4 shows that there is no satisfactory explanation for the

delay in completing the investigation and filing of final report. In that view of

the matter, without going into any other point, this appeal is liable to be

allowed.

In the result, the appeal is allowed and the conviction and sentence

imposed on the appellant/accused in S.C.No.509/2006 on the file of the

Additional Sessions Court, Fast Track Court No.III (Adhoc), Manjeri is set

aside. The appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE acd