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SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
Sathyan – Appellant
Versus
State Of Kerala - Respondent
Criminal Appeal No. 2363 of 2023(arising out of SLP (Crl.) No. 9710/2023 [@Diary No. 16317/2022])
Decided on : 11-08-2023
(A) Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Person receiving information of crime or detecting occurrence thereof, can investigate the same – Questioning such investigation on the basis of bias or such like factor, would depend on facts and circumstances of each case – It is not amenable to a general unqualified rule that lends itself to uniform application. (Para 16)
(B) Abkari Act, 1 of 1077 – Section 8 – Transportation of Arrack – Conviction – Nothing has been put forward to show that there may be a reasonable ground for presence of bias or that there may be a real danger of bias – Bald plea of investigation not been fair, judicious does not support case of Appellant – Simply because person who detected commission of offence, is one who filed report or investigated, such investigation cannot be said to be bad in law – If evidence of such a police officer is found to be reliable, trustworthy then basing conviction thereupon, cannot be questioned and same shall stand on firm ground – Testimonies of official witnesses cannot be discarded simply because independent witnesses were not examined – Correctness or authenticity is only to be doubted on any good reason which is missing from present case – Basing conviction on the basis of testimony of police witnesses as undertaken by trial court and confirmed by High Court vide impugned judgment, cannot be faulted with. (Paras 20, 21, 22 and 26)
(C) Abkari Act, 1 of 1077 – Section 8 – Constitution of India – Article 21 – Transportation of Arrack – Conviction – Fair trial is a right flowing from Article 21 of Constitution of India and it encompasses all stages of trial including that of investigation, inquiry, trial, appeal and revision – Mere urging that delay casts a suspicion on investigation, without any evidence being led in furtherance thereof, cannot be sustained – Inordinate delay has been taken as presumptive proof of prejudice but in particular cases where accused is in custody – Appellant’s grounds to challenge correctness of judgement impugned, fail – As more than 20 years have passed since commission of offence, sentence of Appellant modified to serve a period of three months’ simple imprisonment – Fine as awarded by trial court and as upheld by High Court, confirmed. (Paras 28, 29, 30, 32 and 33)
Facts of the case:
Present appeal is at instance of Accused-Appellant against the order and judgement dated 5th September, 2019 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No. 2822 of 20081, wherein his prayer to set aside conviction in S.C. No. 1140 of 2006 under Section 8 of Abkari Act, was denied and findings returned by Additional District & Sessions Judge, Fast Track (Ad Hoc-11), Kozhikode, in judgment dated 3rd November, 2008, were endorsed.
Question to consider is whether conviction, solely on the basis of official witnesses is sustainable in present facts? And, whether delay of nearly 3 years in filing challan can be said to be materially affecting correctness of judgement of lower court as also judgement impugned?
Findings of Court:
Considering the economic status, the period of time to deposit fine by the Appellant, as awarded, is extended by a period of one year. The judgment of the trial court shall stand modified, also to that extent.
Exemption from surrender as granted vide order dated 14th June 2022, stands vacated. Appellant is directed to surrender before the court concerned, forthwith.
Result : Appeal Partly allowed.
JUDGMENT :
SANJAY KAROL J.
1. This appeal is at the instance of the Accused-Appellant namely, Sathyan against the order and judgment dated 5thSeptember, 2019 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No. 2822 of 20081[Hereinafter referred to as the "impugned judgment"], wherein his prayer to set aside the conviction in S.C. No. 1140 of 2006 under Section 8 of the Abkari Act, was denied and the findings returned by Additional District & Sessions Judge, Fast Track (Ad Hoc-11), Kozhikode, in judgment dated 3rd November, 2008, were endorsed.
BRIEF FACTS
2. On 1st October 2003, the Appellant was arrested for carrying five litres of Arrack, in a jerry can, in his autorickshaw. The case was registered before the court of the Judicial Ist Class Magistrate, Kunnamangalam taking on the number C.P.36/06. Subsequently, the matter was committed, and eventually, made its way to the Court of Additional District & Sessions Judge, Fast Track (Ad Hoc- 11), Kozhikode2[Hereinafter “trial court”].
3. Having framed 3 issues for consideration, the learned trial Court examined the testimonies of PW–1 who was the Excise Inspector Kunnamangalam range and the person who had detected the offence; PW–2, the Assistant Excise Inspector who was with PW-1 and that of PW–3, who was an independent witness but turned hostile.
4. On the first issue of the possession and recovery of arrack from the Appellant, and the second, concerning his guilt therefor, the court returned findings in the affirmative on the basis of the testimonies of PW-1 namely Raveendandrananthan and PW-2, namely, C.K Manoharan, while acknowledging that both of these witnesses were official witnesses, and looking into decisions rendered by this court on that aspect, stated that no reason could be found to disbelieve their evidence or to believe that the articles in question, referred to as “thondi articles” were tampered with.
5. On sentencing, which was issue No. 3, the Court stated that it was a case not fit to be accorded the benefit of the Probation of Offenders Act, 1958 and therefore the Appellant was sentenced to one year of imprisonment and a fine of one lakh rupees and, in default thereof, an additional period of 6 months rigorous imprisonment.
THE IMPUGNED JUDGMENT
6. The High Court has observed that the ground of unexplained delay, on behalf of the Appellant, holds no merit as the Magistrate’s endorsement indicates that the material was produced on the first day and it was directed to be produced on the next working day.
7. The ground of delay in submitting the final report that is, nearly 3 years from the date of detection, was negatived by the court on the ground that the judgment relied on by the counsel for the Appellant3[Krishnan H. v. State, [2015 (1) KHC 822]; 2014 SCC OnLine 28741] has been declared per incurium by a subsequent judgment. 4[Santosh T.A. & Anr. v. State of Kerala [2017(5)KHC 107] The effect thereof being that delay, ipso facto, is not fatal to the case of the prosecution.
8. On the interpolation in the Mahazar, i.e., ext. P1 it was observed that the same could not be given too much importance as the crime and occurrence report registered on the same day stated that the sample collected was indeed a sample of 180ml and not 375 ml as was initially written on such exhibit. The chemical examiners report also notes that the sample was received with its seal intact and therefore no doubt could be seen from the point that the sample drawn was from the contraband recovered from the Appellant.
9. In view of the above findings, vide the impugned judgment, the sentence handed down was confirmed.
10. Hence the present appeal.
ANALYSIS AND CONSIDERATION
11. Section 8 of the Abkari Act reads as follows-
[(2) If any pe
(1) Crime investigation – Person receiving information of crime or detecting occurrence thereof, can investigate the same.(2) Testimonies of official witnesses cannot be discarded simply because inde....
The prosecution must prove charges beyond reasonable doubt, and unexplained delays in investigation can be fatal to the case.
Conviction set aside - Prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of ....
The necessity for timely investigation and proper evidence handling is critical; delays without justification can invalidate a prosecution.
Alleged detection, search, seizure, sampling, sealing, registration of crime and other associated formalities being performed without authority are illegal.
The main legal point established in the judgment is the reliance on contemporaneous documents and official testimony to establish guilt under the Abkari Act, as well as the consideration of personal ....
The court emphasized the importance of witness credibility and procedural adherence in upholding a conviction under the Abkari Act.
A conviction under the Abkari Act requires both competent detection and a clear chain of custody for evidence, failure of which warrants acquittal.
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