The appellant was convicted for the offence under Section 55(a) of the Abkari Act by the Additional Sessions Court(Adhoc)II, Manjeri. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Perumbadappu Police Station, and his party were on patrol on 23.4.1998. While so, they got secret information that a person was travelling by a bus unauthorisedly carrying Indian made foreign liquor. He was going by that bus to the side of Puthanpalli. On getting that information, PW3 and his party left for finding out that bus and they could intercept it at Panambad at 12.15 p.m. The police party entered the bus and found the appellant carrying a black bag on his lap and holding an yellow brief case placed on the platform of the bus. PW3 and his party opened the bag and the brief case and found 34 bottles of 180 ml. containing Indian made foreign liquor viz. Vin Grape Brandy in the brief case and 24 bottles of 180 ml. containing that Brandy in the bag. Since the appellant committed an offence, he was arrested by PW3 at 12.30 p.m. Ext.P2 is the Arrest Memo and Ext.P3 is the Inspection Memo prepared by PW3. Out of the said 58 bottles of Indian made foreign liquor, three bottles were taken as samples. All the bottles, bag, brief case and three one rupee coins found in the pocket of the pants worn by the appellant were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. The brief case seized is MO.1, 55 bottles of liquor seized are MO.2 series and the bag seized is MO.3. Thereafter, PW3 reached Perumbadappu Police Station with the appellant, contraband and the records and registered Crime No. 39 of 1998 of that Police Station incorporating the offence under Section 55(a) of the Abkari Act. Ext.P4 is the FIR thus drawn by PW3. He has produced the contraband and the documents before the court. He also conducted the initial investigation of the case. PW4, the Sub Inspector of Police, Perumbadappu Police Station, continued the investigation and completed the same. He has submitted the Final Report in the case before the Judicial First Class Magistrate's Court, Ponnani.
4. The learned Magistrate, after complying with the necessary legal formalities, committed the case to the Court of Session, Manjeri and, from there, it was made over to the Assistant Sessions Court, Thirur. A charge was framed against the appellant alleging the offence under Section 55 (a) of the Abkari Act. The appellant pleaded not guilty of the charge. Subsequently, the case was withdrawn from that court and made over to the Additional Sessions Court (Adhoc)II, Manjeri.
5. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P7 and MOs. 1 to 3 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.
6. The appellant has raised various contentions challenging the conviction and sentence passed against him. In the case on hand, the contraband was allegedly seized by PW3, the Sub Inspector of Police, at 12.30p.m.on 23.4.1998. But, he has produced the contraband along with the samples before the court only on 2.5.1998 as evident from Ext.P5 List of Property. PW3, while he was in the witness box, did not offer any explanation for such inordinate delay occurred in producing the properties before the court. A Division Bench of this court in Ravi v. State of Kerala (2011(3)KLT 353) laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in Ramankutty v. Excise Inspector(2013(3)KHC 308) found, for the reason stated therein, that an unexplained delay of a single day as fatal to the prosecution case. As already found, PW3 did not offer any explanation for the delay occurred in producing the properties before the court. Therefore, this unexplained inordinate delay occurred in producing the properties before the court is fatal to the prosecution case and, on that ground alone, the appellant is entitled to an order of acquittal.
7. Where the properties were kept after they were seized by PW3 on 23.4.1998 till they were produced before the court on 2.5.1998? No evidence has been adduced by the prosecution either through PW3 or through anybody else examined by the prosecution. Moreover, there is no evidence as to under whose custody the properties were kept during the said period. In Narayani v. Excise Inspector(2002(3)KLT 725), a learned single Judge of this Court observed as follows:
“....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out ”
Therefore, the accused in that case was found to be entitled to benefit of doubt. In the case on hand also, such a benefit is to be extended to the appellant.
8. For the foregoing reasons, the impugned conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to be acquitted of the offence under Section 55(a) of the Abkari Act.
9. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled.
This appeal is allowed.
ks.
True copy
Sd/-
BABU MATHEW P. JOSEPH
JUDGE
P.S. To Judge