Dayananda Shetty vs Station House Officer And Ors

Appellant is the accused in Sessions Case No. 209 of 2002 on the file of the Additional Sessions Judge, (Adhoc-III), Kasaragod. The above case is

charge sheeted by the Manjeshwar Police Station against the appellant alleging offence punishable under Section 55(a) of the Kerala Abkari Act.

The prosecution case is that, on 05.08.2001 at about 5.45 p.m., the accused was found in possession of a 5 litre white cannas containing about 4

litres of arrack.

Hence, it is alleged that the accused committed the offence.

To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P7 are the exhibits marked on the side of the prosecution. MO1 is

the material object.

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

Abkari Act. He is sentenced to undergo simple imprisonment for a period of four years and to pay a fine of Rs.1,00,000/. In default of payment of fine

the accused is directed to undergo simple imprisonment for a further period of six 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 two days in producing the contraband articles before the court. The learned

counsel submitted that, the explanation of the Detecting Officer is that, he wants to show the contraband to the Investigating Officer. The learned

counsel submitted that, the same is not a reason for the delay in producing the contraband articles, when the statues says that, the property should be

produced forthwith. The learned counsel also submitted that, as per the forwarding note the sample was despatched on 06.08.2001 to the analyst

through one Antony, Police constable No. 459. But, the sample received by the analyst only on 14.08.2001 and the above mentioned Antony is not

examined. Therefore, the learned counsel submitted that, the prosecution is not able to prove all the links starting from seizure of the contraband till it

reaches in the hands of the analyst. The learned counsel also submitted that, two samples were seized from the spot and only one sample is produced

before the analyst for the analysis.

The learned Public Prosecutor submitted that, there is adequate oral and documentary evidence to prove the offence against the appellant and there

is nothing to interfere with the conviction and sentence imposed by the lower court.

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

Admittedly, the seizure of the contraband in this case was on 05.08.2001. The contraband was seized and produced before the court only on

07.08.2001 as evident by Ext. P4 property list. I perused the property list. The explanation given by the Detecting Officer is that, he wants to show the

contraband to the Investigating Officer and that is why it is delayed. There is no provision in the Abkari Act that, if the contraband articles is seized

from the possession of an accused, it should be showed to the Investigating Officer and then only it can be produced before the court concerned. The

reason given for the delay in producing the contraband is not at all satisfactory. If there is no proper reason for the delay in producing the contraband

before the court, that is fatal to the prosecution. In this case, as I stated earlier, there is no valid reason for the delay in producing the contraband

before the court. The seizure of the contraband in this case was on 05.08.2001. The sample reached the court only on 07.08.2001. 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€​

Similarly, the sample seized was sent to the analyst as per Ext. P5 forwarding note on 06.08.2001 through one Antony, Police Constable No. 459.

But the sample was received by the analyst only on 14.08.2001 through the above mentioned Police constable. He is not examined. Why the delay in

producing the sample before the analyst by the above mentioned Police Constable is not explained by the prosecution. According to me, that is also

fatal to the prosecution in this case.

In the light of the above discussions, I think, the appellant is entitled to the benefit of doubt.

Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 20.07.2006 in S.C. No.

209 of 2002 on the file of the Additional Sessions Judge, (Adhoc-III), Kasaragod is set aside. The appellant is set at liberty. Bail bond, if any, executed

by the appellant is cancelled.