Rajan /accused v. State Of Kerala Repr...

P.V. Kunhikrishnan, J.:— The appellant is the accused in Sessions Case No. 425 of 2005 on the file of the Additional Sessions Judge, Fast Track Court No. II, Palakkad.

2. The above case is charge sheeted by the Excise Inspector, Alathur against the appellant alleging offence punishable under Section 55(a) of the Abkari Act.

3. The prosecution case is that, on 27.8.2002 at about 5 p.m. the accused was found possessing 2 bottles, one containing 750 ml and the other bottle containing 500 ml of coloured arrack, which was kept concealed in his house for the purpose of sale in violation of the provisions of the Abkari Act. Hence, it is alleged that, the accused committed the said offence.

4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P9 are the documents marked on the side of the prosecution. MO1 and MO2 are the material objects.

5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh. In default of payment of fine, the accused is sentenced to undergo simple imprisonment for four months.

6. Aggrieved by the above conviction and sentence, this criminal appeal is filed.

7. Heard the learned counsel for the appellant and the learned public prosecutor.

8. The learned counsel for the appellant submitted that, the appellant is entitled the benefit of doubt on two grounds. The counsel submitted that, Ext.P7 forwarding note is silent about the person through whom the sample is forwarded to the chemical examiner. The counsel also submitted that, as per the endorsement in Ext.P7 forwarding note, the sample is dispatched on 28.8.2002. But the sample was received by the Analyst only on 17.10.2002. In Ext.P9 analyst report, it is stated that, the Analyst received the sample through one Excise Guard K.P. Vinod. He is not examined. The counsel also submitted that, there is more than two years delay in completing the investigation.

9. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court.

10. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act?

11. Admittedly, the forwarding note is silent about the person through whom the sample is forwarded to the Analyst. He is also not examined. This point is considered by this Court in several decisions. This Court in P. Kumaran v. State Of Kerala [(2016) 4 KLT 718] held as follows:

“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.

12. Moreover, as per the endorsement in Ext.P7 forwarding note, the sample was dispatched on 28.8.2002. As per the endorsement in Ext.P9 analyst report, the sample was received by the Analyst only on 17.10.2002. The Analyst received the sample through one Excise Guard K.P. Vinod. This Excise Guard was also not examined. Where was the sample for the period from 28.8.2002 till 17.10.2002 is not explained by the prosecution. I think, the appellant is entitled the benefit of doubt on this ground also.

13. Moreover, there is long delay in conducting the investigation in this case. The investigation is concluded only after about two years. There is no explanation for the delay. The delay in conducting the investigation without any explanation is fatal to the prosecution case. This Court in P. Kumaran v. State Of Kerala [(2016) 4 KLT 718], Chandran v. State [(2016) 4 KLT 727] and Mukundan v. State Of Kerala [(2016) 3 KLT 532] observed that, if there is an unexplained delay in investigating Abkari cases, the accused is entitled the benefit of doubt. The relevant portion of Kumaran's case (supra) is extracted hereunder:

“The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015) 2 KLT (SN 8) 11 : 2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”

14. Since there is long delay in conducting the investigation in this case and the prosecution has no explanation for the same, the accused is entitled the benefit of doubt on this ground also.

15. In the light of the above discussions, I think, in this case, the benefit of doubt will go in favour of the accused.

16. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 30.5.2006 in S.C. No. 425 of 2005 on the file of the Additional Sessions Judge, Fast Track Court No. II, Palakkad are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled.