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2024 Supreme(Online)(KER) 34959
HIGH COURT OF KERALA
C. PRATHEEP KUMAR, J
KUMAR M. – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 130/2017
SRI.R.SUDHISH, SMT.M.MANJU, SMT.MAYA M.N., PUBLIC PROSECUTOR
Procedural lapses in contraband disposal and unexplained investigation delays entitle the accused to benefit of doubt, leading to acquittal.
Headnote:(A) Abkari Act - Section 55(g) - Criminal Procedure Code - Section 386(b)(i) - Conviction under the Abkari Act for possession of wash and distillation utensils - Conviction confirmed by appellate court but sentence reduced - Revision petition filed challenging conviction and sentence - Court found procedural lapses in disposal of contraband and unexplained delay in investigation - Revision petition allowed, conviction set aside, and accused acquitted. (Paras 2, 7, 8, 9)
(B) Benefit of Doubt - The principle that any unexplained delay in investigation or procedural lapses entitles the accused to benefit of doubt was upheld. (Paras 7, 8, 9)
Facts of the case:
The revision petitioner was found in possession of 65 litres of wash and distillation utensils, leading to his conviction under the Abkari Act. The trial court sentenced him to two years imprisonment and a fine, which was reduced on appeal.
Findings of Court:
The court found that the procedural requirements for disposal of contraband were not followed and there was significant delay in the investigation, warranting acquittal.
Issues: Whether the conviction and sentence were liable to be interfered with based on procedural lapses and delay in investigation.
Ratio Decidendi: The court ruled that procedural lapses in the disposal of contraband and unexplained delays in investigation justified the acquittal of the accused.
Result: Revision Petition allowed, conviction set aside, and accused acquitted.
ORDER
[Crl.Revision Petition No.130 of 2017]
Dated : 20th November, 2024 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.
2. 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.
3. 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 ?
4. Heard Sri.R.Sudhish, the learned counsel for the revision petitioner and Smt.Maya M.N., the learned Public Prosecutor.
5. 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.
6. 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.
7. 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 inAppu 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 is to be followed. Admittedly, in this case, PW3 has not followed the procedure under Section 53-A of the . He also admitted that the permi
