Kerala High Court
M. Anandan vs The State Of Kerala on 28 February, 2025
CRL.REV.PET NO. 2013 OF 2014 1 2025:KER:16716
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.REV.PET NO. 2013 OF 2014
SC NO.251 OF 2011 OF ASSISTANT SESSIONS COURT, KASARAGOD
Crl.A NO.158 OF 2013 OF ADDITIONAL SESSIONS COURT - I, KASARAGOD
REVISION PETITIONER/APPELLANT/ACCUSED:
M. ANANDAN,
AGED 34 YEARS,
S/O.SANKARAN, MAILATTY DESOM, PANAYAL VILLAGE, HOSDURG
TALUK,KASARAGOD DISTRICT.
BY ADV SMT.T.SUDHAMANI
RESPONDENT/RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM.
SMT.SEETHA S. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19.02.2025, THE COURT ON 28.02.2025 DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 2013 OF 2014 2 2025:KER:16716
ORDER
This revision petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973, by the accused in S.C.No.251 of 2011 on the file of the Court of Sessions, Kasaragod Division. As per the judgment dated 04.10.2013 passed by the Assistant Sessions Judge, the petitioner was convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1,00,000/- for the offence under Section 8(2) of the Abkari Act. In default of payment of fine, he was directed to undergo further imprisonment for a period of three months. Challenging the conviction and sentence, the petitioner filed Crl.Appeal No.158 of 2013, wherein as per judgment dated 17.10.2014, the Additional Sessions Judge-I, Kasargod, confirmed the conviction but modified the sentence directing him to undergo simple imprisonment for one year and to pay the fine of Rs.1,00,000/- imposed by the trial court. The default sentence was maintained in the appeal judgment also. Being aggrieved, the petitioner is now before this Court with the above revision petition. For convenience, the parties are referred in this order as they were before the trial court.
2. The prosecution case is that on 19.09.2007, at about 6.30 hours the accused was found carrying a white plastic sack containing 100 CRL.REV.PET NO. 2013 OF 2014 3 2025:KER:16716 packets of arrack, each measuring 100 ml by the side of a public road. The accused was apprehended by PW1 Circle Inspector of Excise and after complying with the procedural formalities such as drawing of samples, preparation of mahazar, etc. The accused was arrested from the spot and he was later produced before the jurisdictional Court and was remanded in Judicial custody.
3. On completion of the investigation, PW6, the Asst. Excise Inspector filed the final report before the Judicial First Class Magistrate-I, Kasaragod, and it was taken cognizance as C.P.No.67 of 2011. On appearance of the accused, the learned Magistrate, after complying with the legal formalities as contemplated under Section 207 Cr.P.C, committed the case to the Sessions Division under Section 209 of Cr.P.C. The Sessions Judge made over the case to the Court of Assistant Sessions, wherein the accused faced the trial.
4. From the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P11 documents were marked. On completion of prosecution evidence the accused was examined under Section 313 Cr.P.C. He denied all the incriminating evidence brought out in the prosecution evidence. Having found the case unfit for acquittal under Section 232 Cr.P.C, it was posted for defence evidence. However, no defence evidence was adduced CRL.REV.PET NO. 2013 OF 2014 4 2025:KER:16716 from the side of the accused. After hearing both sides, the learned Assistant Sessions Judge passed the impugned judgment as said above. The appeal filed by the accused also ended with a partial modification of the sentence alone.
5. Heard the learned counsel for the accused and the learned Public Prosecutor.
6. The learned counsel for the accused vehemently argued that the investigation of the offence was conducted by an officer holding a lower post than that of the detecting officer and hence prejudice is caused to the accused. Moreover, there is a delay of 3 years in starting the investigation, which is also fatal to the prosecution. It is also pointed out by the learned counsel for the accused that in the property list submitted before the court, no specimen seal is affixed by the detecting officer or the investigating officer. Moreover, though samples were entrusted to the Excise Guard from the court on 19.09.2007, it reached the Chemical Examination Laboratory only on 17.10.2007. This delay is also not properly explained by the prosecution. Ext.P9 inventory was certified by the learned Magistrate on 31.10.2007. Who was in custody of the property till that day is also not explained by the prosecution. Therefore CRL.REV.PET NO. 2013 OF 2014 5 2025:KER:16716 according to the learned counsel, the petitioner/accused is entitled for benefit of reasonable doubt.
7. On the other hand, the learned Public Prosecutor submitted that it is true that minor laches are there in the investigation and the detection of the offence. But that is not fatal to the prosecution case.
8. In Jinto v. State of Kerala [2023 (7) KHC 613] this court considered the effect of investigation by a subordinate officer wherein detection was by a superior officer and held thus:
"PW8 - the detecting officer was the Excise Circle Inspector. But, investigation was done by PW9 - the Excise Range Officer, who was his subordinate. When the detection is done by a superior officer, the subordinate officer, who is entrusted with the investigation, will be in a delicate position and he may find it difficult to go against the report of his superior officer, even if some facts comes to his way during the course of investigation, which goes against the detection and seizure. When detection is by a superior officer, investigation done by a sub-ordinate officer causes prejudice to the accused. So it is always preferable and desirable that CRL.REV.PET NO. 2013 OF 2014 6 2025:KER:16716 in a case detected by a superior officer, investigation should be done by an officer of higher rank or even of same rank".
9. From the records, it could be gathered that the detection of the above crime was by the Circle Inspector of Excise Department. He was examined as PW1 before the trial court. But the investigation was conducted and the final report was laid by PW6-the Assistant Excise Inspector. In such circumstances, the possibility of official bias cannot be ruled out in the instant case. The accused is therefore prejudiced by the investigation conducted by PW6.
10. It is pertinent to note that the verification of Ext. P5 mahzar dated 19.09.2007 prepared from the place of occurrence and Ext.P7 property list dated 20.09.2007 produced by the investigating officer before the trial court do not contain the specimen seal of the detecting officer. In Girish v. State of Kerala [2023 (7) KHC 435] this Court held that the absence of impression of specimen seal in the mahazar and property list and nondisclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examination Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. Therefore, it cannot be said that the samples drawn from the contraband CRL.REV.PET NO. 2013 OF 2014 7 2025:KER:16716 articles reached the Chemical Examination Laboratory in a tamper-proof condition. The possibility of tampering with the samples cannot be ruled out in such circumstances.
11. Similarly, there is a huge delay of three years for starting the investigation. In Gangadharan v. State of Kerala [2024 (1) KHC 111] this Court held that delay of two years in completing the investigation and filing charge sheet is against the mandate under Section 50 of the Abkari Act, which says that every investigation into the offences under the Act shall be completed without unnecessary delay. No explanation was offered by the prosecution for the delay of three years in completing the investigation in the instant case. This unexplained delay in completing the investigation and filing the final report is also fatal to the prosecution.
12. The trial court as well as the appellate court failed to properly appreciate these flows in the detection and investigation. It is trite that when the judgment passed by the court below is suffering from patent illegality, this Court can interfere and correct the same by exercising revisional jurisdiction.
CRL.REV.PET NO. 2013 OF 2014 8 2025:KER:16716
13. Having considered the materials on record and the submissions made at the Bar in the light of the judgments of this Court discussed above, I find that the accused is entitled for benefit of reasonable doubt.
In the result, the revision petition is allowed by setting aside the impugned judgment dated 04.10.2013 of the Assistant Sessions Judge, Kasaragod, and the judgment dated 17.10.2014 of the Sessions Court, Kasaragod, in Crl.Appeal No.158 of 2013. The petitioner/accused is not found guilty of the offence punishable under Section 8(2) of the Abkari Act and he is set at liberty cancelling his bail bond. If the accused had deposited any amount before the trial court as part of the fine, the same shall be released to him on submitting a proper application. The material objects shall be disposed of as directed in the trial court judgment.
Sd/-
MURALEE KRISHNA S., JUDGE DSV/-