ORDER
The challenge in this revision petition is the conviction and sentence rendered under Section 8(1) and
(2) of the Abkari Act against the revision petitioner/accused.
2. The revision petitioner is the sole accused in S.C.No.253 of 2009 on the files of the Assistant Sessions Court, Hosdurg.
3. The prosecution case is that on 07.08.2007 at about 12.30 p.m, while PW1, the Excise Inspector and his party were conducting patrol duty, they found the accused carrying a plastic sack containing 60 packets of arrack, each having a capacity of 100 ml.
4. In the trial court, from the side of the prosecution, PW1 to PW5 were examined and Exts.P1 to P12 documents were marked. When the accused was examined under Section 313 Cr.P.C, she denied all the
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incriminating circumstances appearing against her in evidence and contended that she is innocent. Even though an opportunity was granted, no evidence was adduced from the side of the accused. The trial court, on an appreciation of the evidence on record, found the accused guilty and convicted her under Section 8(1) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act, with a default clause.
5. The accused carried the matter in appeal by filing Crl.Appeal No.29 of 2014 before the Additional Sessions Court-II, Kasaragod. The said court, by judgment dated 08.01.2016, allowed the appeal in part and while upholding conviction, modified and reduced the sentence to one of rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. In case of default, the accused was also ordered to
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undergo simple imprisonment for a period of two months.
6. Heard Adv.A.Arunkumar, learned counsel for the revision petitioner and Adv.Sanal P.Raj, learned Public Prosecutor. Perused the records.
7. The learned counsel for the revision petitioner contended that both the trial court and the appellate court did not appreciate the evidence in a proper perspective and has arrived at a wrong conclusion of guilt against the accused. He contended that even though the contraband was allegedly seized from the accused on 07.08.2007 and was produced before the Assistant Excise Commissioner on the next day, no evidence is adduced by the prosecution to show as to in whose custody the same was kept and under what condition. He contended that Ext.P7 inventory list, which is seen prepared on 08.08.2007 has been certified by the Magistrate only on 08.08.2008, after a year and there is no explanation from the prosecution regarding the delay. He also argued that the investigation in
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this case commenced only on 01.03.2009 and the charge sheet was filed only on 01.05.2009, nearly two years after the incident and again there is no explanation for the said delay also. He, by relying on the decisions in Gangadharan v. State of Kerala [2024 (1) KHC 111], P. Kumaran v. State Of Kerala [2016(5) KHC
632] and Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232] contended that the unexplained inordinate delay in conducting the investigation and filing the final report itself is fatal to the prosecution and hence, he prayed that the revision petitioner/accused may be acquitted.
6. Per contra, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with the concurrent findings reached by the courts.
7. An appraisal of the materials on record show that the prosecution is relying upon the evidence of PW1 and PW2 to prove the detection, arrest of the
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accused, the seizure of contraband and taking of sample. The evidence of PW1 and PW2 on this aspect is supportive of each other and it shows that, while conducting patrolling on 07.08.2007, they had found the accused carrying a plastic sack containing 60 packets of arrack. Thereafter, the accused was arrested with the help of a woman police officer and a sample of 290 ml of arrack was taken in a 375 ml. bottle. The sample bottle and the sack containing the remaining 57 packets of arrack were sealed and labelled and taken into custody, by preparing Ext.P2 mahazar. It is to be seen that even though both PW1 and PW2 have been cross- examined in extenso, nothing has been brought out to disbelieve their versions on these aspects.
8. Be that as it may, the evidence of PW1 further shows that, the remaining contraband articles ie, the sack containing 57 packets of arrack have been produced before the Assistant Excise Commissioner on the next day itself and that Ext.P7 inventory list has
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been prepared. Ext.P7 inventory list shows that PW1 has signed in it on 08.08.2007, even though no date is seen affixed by the Assistant Excise Commissioner who has prepared and signed it. But most pertinently it is to be seen that even though Ext.P7 was thus prepared on 08.08.2007, it has been produced before the Magistrate and a certificate of the inventory has been obtained by the prosecution only on 08.08.2008. There is absolutely no explanation forthcoming from the side of the prosecution regarding the said delay. The prosecution has also not examined the Assistant Excise Commissioner, who was allegedly keeping possession of the afore articles during the interregnum. If so, it can be stated without any doubt that the prosecution has failed to prove as to where, under whose custody and in what condition these 57 packets of arrack were kept, before it was produced before the magistrate.
9. Moving further, from the evidence of PW5, it is to be seen that even though the incident has taken
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place as early as on 07.08.2007, the investigation in this case has commenced only on 01.03.2009, nearly about 19 months after the detection. It is also pertinent to note that after completing the investigation, the charge sheet has been filed by PW5 only on 01.05.2009. There is absolutely no explanation forthcoming from the side of the prosecution for the inordinate delay in the afore events. It is a settled law as held in decisions in Gangadharan v. State of Kerala, P. Kumaran v. State Of Kerala and Moothedath Sivadasan and Another v. State of Kerala (all cited supra) that unexplained delay in completing the investigation and filing the final report itself is fatal to the prosecution. If so, in the light of the afore discussions, I find that the accused in instant case, is entitled to get the benefit of doubt, thereby meaning that the conviction and sentence against her cannot be sustained.
In the result, this criminal revision petition
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is allowed as follows:
The conviction and sentence of the revision petitioner/accused under Section 8(1) and (2) of the Abkari Act in S.C.No.253 of 2009 by the Assistant Sessions Court, Hosdurg and as confirmed in Crl.A.No.29 of 2014 by the Additional Sessions Court-II, Kasaragod are set aside and the revision petitioner/accused is set at liberty.
Sd/-
P. V. BALAKRISHNAN
JUDGE
scl
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