Accused in S.C.No.358/2000 on the file of the Additional District and Sessions Court Fast Track(Adhoc-II), Kozhikode, is the appellant herein. 2. The appellant was charge-sheeted by the Assistant Sub Inspector of Police, Koiyilandi police station in Crime No.458/1998 of Koyilandi police station under Section 55(a) of the Abkari Act.
3. The case of the prosecution in nut shell was that, on 29.10.1998 at about 09.00 p.m., the appellant was found to be in possession of 10.00 liters of arrack in a plastic can near the mosque in Pookkad Thorayikkadavu road in Thovvakode Desom, Chemanchery Amsom, in Chemamchery Panchayath and found transiting the same in violation of the Provisions of the Abkari Act and thereby he had committed the offence punishable under Section 55(a) of Abkari Act.
4. After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Koyilandi, and the same was committed to the Court of Sessions, Kozhikode, by the magistrate under Section 209 of the Code of Criminal Procedure and after committal, the Sessions Court, Kozhikode, has taken cognisance of the case as S.C.No.358/2000 and it was made over to the Additional Sessions Court (Adhoc-II), for disposal.
5. When the appellant appeared before the court below, after hearing the counsel for the appellant and Additional Public Prosecutor of that court, the Additional Sessions Judge framed charge under Section 55(a) of Abkari Act, against the appellant and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P10 and MO1 were marked on the side of the prosecution. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and no article was seized from his possession and he has been falsely implicated in the case. Since the the evidence in the case did not warrant acquittal under Section 232 of the Code of Criminal Procedure, the Additional Sessions Judge directed the appellant to enter on his defence, but no defence evidence was adduced on his side, except marking of Ext.D1, a contradiction in the evidence of PW2. After considering the evidence on record, the court below found that the appellant was guilty under Section 55(a) of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two and half years and also to pay a fine of ₹1,00,000/-, in default to undergo rigorous imprisonment for six months more. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.
6. Heard the counsel for the appellant and Public Prosecutor.
7. The counsel for the appellant submitted that, the detection and investigation was conducted by the Head Constable and Assistant Sub Inspector of Police respectively, who are not abkari officers empowered to detect and conduct investigation as per the notification issued by the Government and as such the entire detention / investigation is vitiated and no conviction can be entered on that basis. Further, there was a delay of 24 days in producing the article, which has not been properly explained as well. So under the circumstances, the court below was not justified in convicting the appellant for the offence alleged and he is entitled to get acquittal.
8. On the other hand, the Public Prosecutor argued that, the appellant was confined by the local people, who were members of the ‘Madya Varjana Committee’ and after getting information from them, PW5 who was the Head Constable and in charge of the police station immediately went to the spot and arrested the accused and seized the articles and so it cannot be said that the seizure is not proper. Under the Code of Criminal Procedure, any police officer can prevent the commission of the crime and as such he cannot wait for the empowered officer to come to arrest the accused so as to allow the person who is committing the crime to escape from the place of occurrence. Further the investigation was conducted by the Assistant Sub Inspector of police, who is the Station House Officer at the time and the delay has been properly explained as well. So the court below has considered all these aspects in detail and rightly convicted the appellant and no interference is called for.
9. The points that arise for consideration are:
I. Whether the court below was justified in convicting the appellant for the offence under Section 55(a) of Abkari Act?
II. If so, the sentence imposed is proper and legal?
10. Point No.I: The case of the prosecution as emerged from the prosecution witnesses was that, on 29.10.1998, PW2, the President of the Chemanchery Panchayath and PW3, the President of the ‘Madya Varjana Committee’ of that locality and PW1 member of that committee, got information that the appellant was engaged in sale of arrack and immediately they went to the place and saw the appellant coming with a cannas in his hand and they suspected it was arrack and so they confined them and informed the Koyilandi police station. At that time PW5, the Head Constable was in the police station and he came to the spot and examined the contents of the cannas and satisfied that it was arrack and immediately he took the sample from the contents of the cannas and sealed the same and sealed the cannas also and seized the same as per Ext.P2 mahazar in the presence of PW2 and others. Thereafter he arrested the appellant and prepared Ext.P6 arrest memo and gave Ext.P7 arrest intimation and came to the police station and prepared Ext.P9 report and registered Ext.P8 first information report as Crime No.456/1998 of Koyilandi police station under Section 55(a) of Abkari Act against the appellant. Thereafter he entrusted the articles to PW4 and the investigation was under taken by PW4, the Assistant Sub Inspector of Police on the next day. He went to the spot and prepared Ext.P1 scene mahazar in the presence of PW1 and another. He prepared Ext.P3 property list and sent the articles to court. He sent Ext.P4 forwarding note with a request to send the sample for chemical analysis and accordingly the sample was sent from court and Ext.P5 chemical analysis report obtained. As instructed by PW4, PW5 produced the appellant before the court along with Ext.P10 remand report on the next day. PW4 questioned the witnesses, recorded their statements and completed the investigation and submitted final report before the court.
11. PWs 1 to 3 are the independent witnesses of the seizure. They have categorically stated that, while they were passing along with the road in question, they saw the appellant coming with MO1 cannas and suspecting that it was arrack, they stopped him and informed the same to the police station, accordingly the head Constable/PW5 came there and took sample and arrested the appellant and seized the articles and they fully supported the case of the prosecution regarding the seizure of MO1 cannas from the appellant and arrest of the appellant and they identified MO1 as the cannas seized from the possession of the appellant as well. So they proved the arrest of the accused along with MO1 cannas. PW5 is the detecting officer in this case. Admittedly he is a Head Constable attached to Koyilandi police station not an abkari officer empowered to conduct investigation as per the notification of SRO 321/96. He had deposed about the receipt of the information regarding the detention of the appellant with the cannas by the local people and going to that place, seizing the articles after taking sample and arresting the accused. He had also deposed about the registration of the crime and also the entrustment of the articles to PW4, the Assistant Sub Inspector of Police. So his evidence also will go to show that, on getting information regarding the detention of the appellant by the local people, he went there and arrested the appellant along with MO1 cannas and complied with the formalities of taking sample.
12. In Ext.P2 seizure mahazar, there is nothing mentioned regarding the nature of the seal used for sealing the article. It is not mentioned in the body of the mahazar, as to how the sample was taken, but however, in the description part, it was mentioned that, sample was taken and it was sealed. There is no description of the seal used mentioned in the mahazar or the impression of the seal was put in the mahazar as well. Further it is seen from the evidence that, though the seizure was effected on 29.10.1998, the article reached the court only on 20.11.1998, namely after 24 days of seizure. It is true that PW5 had stated that it was entrusted to PW4 and he was in possession of the same. But it is seen from Ext.P3 property list that, it was prepared by the Head Constable/ PW5 and PW4 had stated that he did not know the reason for the delay as well. But the court below had come to a conclusion that there was evidence to show that on account of non-
availability of the police official, who were engaged in law and order situation in that locality, the delay occurred and that has been accepted by the court, but there was no such evidence adduced on the side of the prosecution, while PW4 and 5 were examined before the court.
13. Further in the decision reported in (2011(3) KHC 121) Ravi v. State of Kerala and Another, this court has held that:
“It is true that, it is not necessary to produce the articles seized forthwith and the delay in producing the article alone is not sufficient to dis-believe the case of the prosecution or genuineness of the articles seized, but the delay must be explained to the satisfaction of the court and if such a satisfaction is not there, then the delay is fatal and that benefit must be given to the accused”
In that case, there was a delay of 16 days in producing the seized article and there was no possible explanation coming from the investigation officer or the detecting officer for the delay in producing the same and that benefit was given to the accused and he was acquitted in that case.
14. Further in the same decision, it has been held that:
“The prosecution must prove that the articles seized is the same article that has been produced before court and it reached the chemical analysis lab without any possibility of tampering and the chemical analysis report relates to that article. If this is not proved by the prosecution, it cannot be said that, prosecution has proved beyond reasonable doubt that the accused had committed the offence as alleged and that benefit must be given to him”.
15. So in the absence of any explanation given by the prosecution regarding the delay in producing the article, merely because it was mentioned by PW4 that he was in possession of the same is not sufficient, especially when the delay was inordinate. The court below was not justified in coming to the conclusion that the delay has been properly explained, in view of the discussions made above and on that basis condoning the delay and accepting the property which has been produced after inordinate delay and convict the accused is unsustainable in law.
16. The other question is whether the detection is proper? The Division Bench of this court in (2008(2) KLT 1047) Subash v. State of Kerala, it has been observed that:
“Any detection or investigation conducted by the Assistant Sub Inspector of police, who is not an abkari officer as defined under the Abkari Act and shown in the notification SRO 321/96 is not competent to detect or conduct investigation and that is vitiated”.
17. Further in the decision reported (2009(2) KHC 661) Unni v. State of Kerala and (2009 KHC 829) Rajan V. State of Kerala, this court has held that:
“Detection made by the Assistant Sub Inspector of police who is not an abkari officer and he is not competent to detect/ investigate or lay final report in relation to abkari offence and if that will vitiate the entire detection and it will make the detention itself is illegal and no conviction can be based on such illegal detention”.
18. In the decision reported in Unni's case (supra), this court has observed that, even if the station house officer, since he is not an abkari officer as defined not entitled to detect or investigate the cases under the Abkari Act and accused in such cases is entitled to get acquittal. The same view has been reiterated in the decision reported in (2011(1) KLD 346) Baiju and others v. State of Kerala.
19. So in view of the dictum laid down in the above decision, the detection as well as the investigation conducted by PW5 and PW4 respectively, who are the head constable and Assistant Sub Inspector of Police, is illegal and no conviction can be based on such illegal detection and investigation and that benefit must be given to the appellant. The discussions made by the court below contra is against the dictum laid down in the above decisions. So the finding of the court below that the prosecution has proved beyond reasonable doubt that the appellant had committed the offence punishable under Section 55(a) of the Abkari Act is unsustainable in law and the same is liable to be set aside and the appellant is entitled to get acquittal of the charge levelled against him giving the benefit of doubt. The point is answered accordingly.
20. Point No.II: In view of the finding on Point No.I that, the appellant is entitled to get acquittal, the sentence imposed by the court below is illegal and the same is also set aside. The point is answered accordingly.
In the result, the appellant succeeds and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellant under Section 55(a) of Abkari Act are hereby set aside and the appellant is acquitted of the charge levelled against him, giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. If the appellant has deposited any amount towards fine imposed, then the lower court is directed to refund the same to him on making an application for that purpose.
Office is directed to communicate this judgment along with back records to the court below, at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE // True Copy // P.A. to Judge ss