The necessity for timely investigation and proper evidence handling is critical; delays without justification can invalidate a prosecution.

O R D E R

The revision petitioner was convicted and sentenced by the courts below under Section 55 (a) of the Abkari Act .

2. The prosecution allegation is that on 21.9.2004 at about 7.30 a.m., the revision petitioner was found in possession of five litres of arrack, in contravention of the provisions of the Abkari Act .

3. Heard.

4. The learned counsel for the revision petitioner has argued that there was inordinate delay in conducting the investigation and hence, the conviction and sentence passed by the courts below cannot be sustained. The learned counsel relied on the decision of this Court in Krishnan H. v. State [ 2015(1) KHC 822 ], to buttress her argument. In Krishnan H. (supra), the court held that the inordinate delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, the incident was on 21.9.2004. The statements of the witnesses were recorded by PW7 only after one year and two months from the date of occurrence. The final report was filed before the court only on 9.12.2005, which was after a period of more than one year and two months from the date of occurrence. PW7 stated that there were old cases to be investigated and hence, there was delay in questioning the witnesses in this case. The said explanation given by PW7 cannot be said to be a justifiable explanation for the inordinate delay of more than one year and two months in recording the statements of the witnesses. Therefore, it has to be held that there was no sufficient explanation for the inordinate delay in conducting the investigation and filing the final report before the court in this case. Therefore, the delay in conducting the investigation in this case is fatal to the prosecution.

5. The incident in this case was on 21.9.2004. Ext.P7 property list would show that the sample was produced before the court only on 22.9.2004. Ext.P6 is the Crime and Occurrence Report, which was produced before the court only at 12.55 p.m. on 22.9.2004. Therefore, the sample in this case was also produced before the court only at 12.55 p.m. on 22.9.2004. The delay, as such, is always not fatal to the prosecution case. However, even if the delay is for a day, that has to be explained by the prosecution. In this case, the prosecution could not explain the reason why the sample taken on 21.9.2004 at about 7.30 a.m. could not be produced before the court on the same day. The investigating officer should have produced the sample before the court concerned on the date of seizure itself, particularly when the seizure was effected at 7.30 a.m. on the date of occurrence. There is also no evidence with regard to the safe custody of the sample till it was produced before the court. In the said circumstances, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the revision petitioner.

6. The above vital aspects were not considered by the courts below while appreciating the evidence. Consequently, the conviction and sentence passed by the courts below cannot be sustained.

In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55 (a) of the Abkari Act and the revision petitioner stands acquitted for the said offence.

The bail bond of the revision petitioner stands discharged.

Dated this the 17th day of January 2019.

sd B. SUDHEENDRA KUMAR, JUDGE.

dl/

// True copy // PA to Judge