A. Gangadharan vs State Excise Inspector

The appellant is the accused in S.C.No.370/2003 on the file of the Additional Sessions Judge (Adhoc-I), Kalpetta.

The above case is chargesheeted by the Excise Inspector, Mananthavadi against the appellant alleging offences punishable under Section 55(a) of

the Abkari Act.

The prosecution case is that, on 10.01.2002 at about 01:20 p.m the accused was found transporting 15 packets of Karnataka made arrack, each

packets containing 100 ml arrack. Hence it is alleged that the accused committed the offence.

To substantiate the case, prosecution examined PWs 1 to 5. Exhibits P1 to P7 were marked on the side of the prosecution. MO1 to MO3 are the

material objects.

After going through the evidence and the documents, the trial court found that the accused committed offence under Section 55(a) of the Abkari

Act. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/-. In default of payment of the fine

amount, the accused is directed to undergo rigorous imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal is

filed.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

The learned counsel for the appellant submitted that, there is a delay of 9 days in producing the contraband articles before the Court after the

seizure. The prosecution has no explanation for the delay. The learned counsel for the appellant submitted that, there is delay in completing the

investigation also.

The learned Public Prosecutor submitted that, the delay is explained by the Investigating Officer saying that, he was engaged in some other work.

Therefore, the learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence imposed on the appellant based

on the contention that, there is delay in producing the contraband articles.

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

A perusal of Exhibit P4 property list will show that, the properties were produced only on 19.01.2002. Admittedly , the seizure was on 10.01.2002.

PW 5 is the Investigating Officer in this case. He deposed before the lower court that, he was busy with some other works and that is why he was

not able to produce the contraband articles. That is not a reason for the delay in producing the article for about nine days. As per the mandate of the

Abkari Act, the properties seized from an accused should be produced before the court forthwith. If there is any delay without any proper explanation,

that is fatal to the prosecution. In this case the reason for the delay explained by the Investigating Officer cannot be accepted at all.

The seizure of the contraband in this case was on 10.01.2002. The sample reached the court only on 19.01.2002. There is no explanation from the

part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in Sukumaran v. State

of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT

822). Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder:

“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range,

2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 8 3wherein it is held that 'in the absence of satisfactory explanation

by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of

doubt.

In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was

kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover,

Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the

sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.â€​

Moreover, it is stated by the learned counsel for the appellant that, there is delay in conducting investigation. This point is also considered by this

Court in Kumaran Vs State of Kerala 2016(4) KLT 718, Mukundan Vs State of Kerala 2016(3) KLT 532 and in Chandran Vs State of kerala 2016(4)

KLT 727.

Considering the above contentions raised by the appellant, I think the appellant in this case is entitled the benefit of doubt.

Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 30.06.2006 in S.C No.370/03

on the file of the Additional Sessions Judge (Adhoc-I), Kalpetta is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant

is cancelled.