Kumar M vs State Of Kerala

C.Pratheep Kumar, J

This Criminal Revision Petition has been preferred by the appellant in Crl.Appeal No.435/2016 on the file of the Special Additional Court of Session (Marad Cases), Kozhikode, confirming the conviction of the revision petitioner under Section 55(g) of the Abkari Act, passed by the II Additional Assistant Sessions Judge in S.C.648/2014.

The prosecution case is that on 10.9.2012 at 5.30 p.m. the revision petitioner was found in possession of 65 litres of wash and other utensils for distillation of arrack, at Kanniparamba Desom near the residence of one Pushpa. He was arrested by PW2, the Excise Inspector and party and the final report was filed by PW5, after investigation. The trial court, after finding him guilty under Section 55(g) of the Abkari Act, sentenced him to undergo simple imprisonment for two years and to pay fine of Rs.1,00,000/-. In appeal, the Sessions Judge while sustaining the conviction, reduced the substantive sentence of imprisonment to simple imprisonment for 45 days. Dissatisfied with the above judgment of the learned Sessions Judge, he preferred this Revision, raising various grounds.

Now the point that arise for consideration is the following :

Whether the conviction and sentence passed by the trial court as confirmed by the Sessions Judge under Section 55(g) of the Abkari Act against the revision petitioner is liable to be interfered with, in the light of the grounds raised in the Revision Petition ?

Heard Sri.R.Sudhish, the learned counsel for the revision petitioner and Smt.Maya M.N., the learned Public Prosecutor.

PW2, the Excise Inspector, Kunnamangalam Excise range would swear that on 10.9.2012 at about 5.30 p.m, on getting information that the accused has stored wash near an abandoned house of one Pushpa at Kanniparamba, he along with the Excise party, reached there and found that the revision petitioner was pouring some liquor from one black can to another blue can. On examination of the contents, it was found to be wash. On further search, two aluminum vessels were also found from near the place of occurrence. He had collected two samples of wash from one of the containers, disposed of the remaining wash and seized the containers. Ext.P4 is the occurrence report prepared by him. Ext.P7 is the chemical report received from the chemical lab. The examination of the sample shows that the sample contained ethyl alcohol. PW3 who accompanied PW2 also supported the evidence of PW2.

One of the contentions raised by the learned counsel is that sample was taken only from one of the containers and that the failure to take sample from the other containers is fatal to the prosecution case. According to PW2, sample was taken from the blue can (MO1) which contained 30 litres of wash. According to him, the wash contained in the other vessel were of identical in nature and therefore, sample was taken only from the blue can. The explanation given by PW2 for not taking samples from each containers appears to be a genuine one. In this case, the total quantity of the contraband namely, wash, has little significance as possession of any quantity of wash is prohibited. Therefore, the fact that sample was taken only from one of the containers is not fatal to the prosecution case.

Another contention taken by the learned counsel is that while disposing of the wash, the mandate of Section 53-A of the Abkari Act was not complied by PW2 and hence, the benefit of doubt is to be given to the accused. In support of the above argument, he has relied upon the decisions of this Court in Appu v. State of Kerala, 2016 (5) KHC 310 and Chandran @ Chandrashekaharan v. State, 2016 (5) KHC 650. In the above decisions, this Court held that for the disposal of wash also, the mandate of Section 53-A of the Abkari Act is to be followed. Admittedly, in this case, PW3 has not followed the procedure under Section 53-A of the Abkari Act. He also admitted that the permission of the authorized officer was not obtained for disposal of the contraband. No inventory of the contraband was prepared and no photograph was also taken before its disposal. Therefore, in the light of the above decisions, the accused is entitled to get the benefit of doubt.

It was also argued that in this case there is unexplained delay in completing the investigation and filing final report. The learned counsel has relied upon the decisions of this Court in Kumaran P. v. State of Kerala and Another (2016 (5) KHC 632), and Chandran (supra), in support of the above argument. In Kumaran (supra) the incident was on 24.7.2007 and the final report was filed on 13.1.2009. In that case, the Court held that there was delay in completing the investigation and hence, the benefit of doubt was given to the accused. In Chandran (supra), the offence was detected on 7.1.2006 and the final report was filed on 7.11.2006. Even in that case, the Court held that there is unexplained delay in completing the investigation and hence, the benefit of doubt was given to the accused.

In the instant case, the offence was detected on 10.9.2012 while the final report was filed only in 2014. For the above delay in completing the investigation and filing the final report, PW5 has not offered any explanation. Since PW5 could not offer any explanation for the above delay in completing the investigation, and in filing the final report, the accused is entitled to get the benefit of doubt, on that ground also. For the above reasons, this Revision Petition is liable to be allowed and the accused is entitled to get an order of acquittal. Point answered accordingly.

In the result, this Revision Petition is allowed. The impugned judgment of the trial court as confirmed by the appellate court is set aside. The revision petitioner is acquitted under Section 386(b)(i) of Cr.P.C. and he is set at liberty cancelling his bail bond.