Kerala High Court
Rajan vs State Of Kerala on 8 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
FRIDAY, THE 8
DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
CRL.REV.PET NO. 2534 OF 2012
AGAINST THE JUDGMENT DATED 09.11.2012 IN CRA 762/2011 OF
IIIRD ADDITIONAL SESSIONS COURT, KOZHIKODE
SC 295/2010 OF ASSISTANT SESSIONS COURT, KOYILANDY
REVISION PETITIONER/APPELLANT/ACCUSED:
AJAN, AGED 44 YEARS, S/O.GOPALAN,
R
THARIPPAKKUNIMALAYIL HOUSE, MANNAMPOYIL BALUSSERY,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
BY ADV SRI.P.V.ANOOP
RESPONDENTS/RESPONDENTS/COMPLAINANT:
TATE OF KERALA
S
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI 682031.
SHRI RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR
HIS
T CRIMINAL
REVISION
PETITION HAVING BEEN
FINALLY
HEARD
ON
08.12.2023,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE FOLLOWING:
Crl.R.P No.2534 of 2012 2
O R D E R
This revision is at the instance of the accused in
S.C.No.295 of 2010 on the file of Assistant Sessions Judge,
Koyilandy, assailing the judgment in Crl.Appeal No.762 of
2011 on the file of IIIrd Additional Sessions Judge,
Kozhikode, which upheld his conviction and sentence under
Section 8(2) of the Abkari Act.
2. Prosecution case is that on 18.09.2008, at 06.45
p.m.,hewasfoundinpossession oftenlitresofillicitarrack
in a ten litre can at Mannampoyil Desom at Balussery.
PW1-the preventive officer attached to Balussery Excise
RangeOfficeandpartydetectedtheoffence,whileonpatrol
duty. The contraband was seized and therevisionpetitioner
was arrested at the scene of occurrence itself. After
completing all the legal formalities, the revision petitioner
was produced before theExciseRangeOfficealongwiththe
articles seized and the records prepared. PW6-the Excise
Inspector registered the crime and PW7 investigated the
Crl.R.P No.2534 of 2012 3
case and laid charge-sheet against the revision petitioner
under Section 8(2) of the Abkari Act.
3. On appearance of therevisionpetitionerbeforethe
trial court, charge was framed under Section 8(2) of the
AbkariAct,towhichhepleadednotguiltyandclaimedtobe
tried.Thereupon,prosecutionexaminedPWs1to7,marked
Exts.P1 to P7 and identified MO1 to prove its case. On
closure of the prosecution evidence, the revision petitioner
was questioned under Section 313 of Cr.P.C. He denied all
the incriminating circumstances brought on record and
Ext.D1 was marked from defence side.
4. On analysing the facts andevidenceandonhearing
the rival contentions from either side, the trial court found
the revision petitioner guilty under Section 8(2) of the
Abkari Act and he was sentenced to undergo simple
imprisonment for a period of one year and fine of
Rs.1,00,000/- with a default sentence of simple
imprisonment for three months.
5. Aggrieved by the conviction and sentence, the
Crl.R.P No.2534 of 2012 4
revision petitioner preferred Crl. Appeal No.762 of 2011.
The appellate court, on re-appreciation of the facts and
evidence, found thattherewasnothingtointerferewiththe
conviction and sentence imposed by the trial court, and
hence dismissed the appeal, againstwhichhehaspreferred
this revision.
6. Now this Court is called upon to verify thelegality,
propriety and correctness of the conviction and sentence
imposed on the revision petitioner by the courts below.
7. Heard learned counsel for the revision petitioner
and learned Public Prosecutor.
8.PW1-thedetectingofficerandPW2theExciseGuard,
whowasaccompanyinghim,fullysupportedtheprosecution
case, though PWs 3 and 4, the independent witnesses,
turnedhostiletotheprosecution.PW7investigatedthecase,
and laid charge-sheet against the revision petitioner.
9. Learned counsel for the revision petitioner is
assailingthejudgmentonthereasonofdelayinsendingthe
sample for chemical analysis, and for non-examination of
Crl.R.P No.2534 of 2012 5
theThondyClerk,aswellastheExciseGuard,toexplainthe
reasons for delay.
10. Ext.P1 arrest memo shows that the revision
petitioner was arrested on 18.09.2008 at 6.45 p.m. ExtP2
seizure mahazar was also prepared on18.09.2008at06.45
p.m. in the presence of independent witnesses. The seizure
mahazar contains specimen impression of the seal, which
was affixed on the sample bottle. Ext.P5 search list shows
that the contraband articles along with the sample bottle
were produced before the jurisdictional Magistrate on
18.09.2008 itself, and so there was no delay in producing
the sample before the court. Ext.P7 chemical report shows
that the sample was sent to the Chemical Examiner's
Laboratory on 13.11.2008 and it reached theLaboratoryon
the very same day. Ext.P6 forwarding note contains the
specimen impressionofthesealandthenameoftheExcise
GuardwithwhomthesamplewasforwardedtotheChemical
Examiner's Laboratory. So in fact, there was no delay in
producing the sample before the court or for reaching the
Crl.R.P No.2534 of 2012 6
sample before the Chemical Examiner's Laboratory, after it
was forwarded from court.
11. The contention of learned counsel for the revision
petitioner is that though the sample bottle was produced
before court on 18.09.2008, it was sent to the Chemical
Examiner's Laboratory only on 13.11.2008 with a delay of
almost 55 days. When the sample bottle was produced
before court in a sealed condition and the seal tallied with
the specimen impression of the seal found in the seizure
mahazar andforwardingnote,andtheChemicalReportalso
shows the sample bottle intact with the seal affixed, unless
and until there is specific reason to allege tampering, the
revision petitioner cannot plead any prejudice due to the
delayof55daysinsendingthesamplefromthecourttothe
Laboratory. So, that delay is not fatal to the prosecution
case.
12.Anothercontentiontakenupbylearnedcounselfor
the revision petitioner is thatthoughtheoccurrencewason
18.09.2008, PW7 took over the investigation only on
Crl.R.P No.2534 of 2012 7
03.10.2009asdeposedbyhim,andthefinalreportwasfiled
on 28.10.2009. The Chemical Report is dated 22.06.2009
and the final report was filed just four months thereafter.
Learned counsel for the revision petitioner is relying on the
decision Moothedath Sivadasan v. State of Kerala
[2021 (1) KLT 744] to say that every investigation into
theoffencesundertheAbkariActshallbecompletedwithout
unnecessary delay as mandated in Section 50 of the Act.
The delay involved in the decision Moothedath
Sivadasan's case cited supra was two years. Here the
occurrencewason18.09.2008andthefinalreportwasfiled
on 28.10.2009. So just after one year, thefinalreport was
filed. The revision petitioner failed to show any prejudice
caused to him, by the delay of one year in filing the final
report.
13. In Ganesh Bhavan Patel v. State of
Maharashtra [1978 KHC 637 : AIR 1979 SC 135], the
ApexCourtheldthatthedelaymaynot,byitself,amountto
seriousinfirmityintheprosecutioncase.But,itmayassume
Crl.R.P No.2534 of 2012 8
such a character if there are concomitant circumstances to
suggest that the investigator was deliberately marking time
with a view to decide about the shape to be given to the
case and the eye witnesses to be introduced. If the
circumstances of the case lead to the conclusion that the
prosecution story was conceived and constructed after a
gooddealofdeliberationanddelayinashadysetting,highly
redolent of doubt and suspicion, it is fatal.
14.RelyingonthedecisionoftheApexCourtinRanbir
and Others v. State of Punjab [1973 KHC 590 : 1973
(2) SCC 444], this Court in Santhosh T.A. and Another
v. State of Kerala [2017 (5) KHC 107 : 2018 Crl.LJ
NOC 156] held that fortheCourttotakenoticeofdelayin
recordingstatementsofthewitnesses,itisnecessaryforthe
defencetoquestiontheinvestigatingofficeraboutit,sothat
he may give an explanation for it. If that is not done, the
Court will ignore the delay.
15. The cross examination of PW7-the investigating
office will not show thathewasconfrontedwiththedelayif
Crl.R.P No.2534 of 2012 9
anyoccurredforcompletinginvestigationandtofilethefinal
report. Moreover,thedelayinvolvedinthiscaseisjustone
yearanditcannotbesaidthatthereoccurredanyinordinate
or unexplained delay in filing the final report. The final
report was filed just after four months of getting the
Chemical Examiner's Report.
16. The hostilityofindependentwitnessesalsoisofno
significance as the testimony given by PWs 1 and 2, the
officialwitnesseswasfoundtobereliableandtrustworthyby
thetrialcourtaswellastheappellatecourt. Asheldbythis
Court in Abdul Rasheed v. State of Kerala [2008 (3)
KLT 150], the hostility of independent witnesses is not a
groundtodisbelievethetestimonyofofficialwitnessesifitis
found reliable and trustworthy.
17. In any view of the matter, the conviction and
sentenceoftherevisionpetitionerunderSection8(2)ofthe
Abkari Act is not liable to be interfered with. He was
sentencedtoundergosimpleimprisonmentforoneyearand
fine of Rs.1,00,000/- with a default sentence of simple
Crl.R.P No.2534 of 2012 10
imprisonment for three months bythetrialcourtanditwas
upheld by the appellate court also.
18. The incident in this case occurred on 18.09.2008.
He was convicted by the trial court on 29.10.2011. The
appellate court upheld his conviction and sentence on
09.11.2012. The revision petition filed by him was pending
before this Court for the last 11 years. Foralltheseyears,
he was carrying the traumaofconvictioninacriminalcase.
Learned counsel for the revision petitioner contended that
nowtherevisionpetitionerisaged53yearsandsoalenient
viewmaybetaken.Advertingtothefactsandcircumstances
of this case, this Court is of the view thatthesentencecan
be modified and reduced, while upholding his conviction
under Section 8(2) of the Abkari Act.
19. Intheresult,therevisionpetitionisallowedinpart
upholding the conviction of the revision petitioner under
Section8(2)oftheAbkariAct,butmodifyingthesentenceto
simple imprisonment for six months and fine of
Rs.1,00,000/- with a default sentence of simple
Crl.R.P No.2534 of 2012 11
imprisonment for two months. Set off is allowed for the
period undergone in custody by the revision petitioner,
during trial.
20. Registry of this Court is directed to transmit the
case records to the trial court forthwith for executing the
sentence without delay.
The revision petition stands allowed in part, to the
extent as above.
d/-
S
SOPHY THOMAS, JUDGE
DSV/-
