Kerala High Court
Jerlus vs State Of Kerala on 28 January, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938
CRL.A.No. 129 of 2013 (A)
--------------------------
AGAINST THE JUDGMENT IN S.C NO. 928/2007 of FAMILY COURT,
KOTTARAKKARA DATED 28-01-2013
APPELLANT/ACCUSED NO.1:
-----------------------
JERLUS,
S/O.MARCHOSE, MUNAMBATHU PUTHEN VEEDU,
PADAPPAKKARA DESOM, MULAVANA VILLAGE,
KOLLAM TALUK.
BY ADV. SRI.M.K.CHANDRA MOHANDAS
RESPONDENT/COMPLAINANT:
----------------------
STATE OF KERALA
REP. BY THE EXCISE INSPECTOR,
EXCISE RANGE OFFICE,
KOLLAM IN CRIME NO.84/00
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08-03-2017, ALONG WITH CRL.A NO.130/2013. THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
ab
P.UBAID, J.
---------------------------------------
Crl.A Nos.129 & 130 of 2013
---------------------------------------
Dated this the 8th day of March, 2017
J U D G M E N T
The appellants in these two appeals are husband and wife. The appellant in Crl.A No.129/2013 is the husband and the other appellant is the wife. They faced prosecution before the Court of Session, Kollam in S.C No.928/2007 on the allegation that at about 1 pm., on 29.10.2000 the couple were found possessing huge quantity of 400 liters of wash and 100 liters of arrack at a shed attached to their house at Padappakkara. The offence was detected by a joint team of excise and police officials led by the Excise Inspector of the Kollam Excise Range. The team happened to conduct a search at the house on the basis of secret reliable information. When the joint team reached there for search they saw a man and a woman just escaping from the shed to the nearby canal, and they saw the house and the attached shed lying open. Enquiry revealed that the man and the woman who escaped, are the two accused in this case. On Crl.A Nos.129 & 130 of 2013 2 search at the house and the shed, the team led by the Excise Inspector could see huge quantity of 400 liters of wash kept in two barrels of 200 liters capacity and also 100 liters of arrack contained in ten plastic cans of 10 liters capacity. They also found a packing machine there, and some 150 empty plastic covers. The Excise Inspector seized all the properties as per a mahazar and a search list. The properties were taken into the Excise Office where the Excise Inspector registered a crime against the couple. The investigation at the hands of somebody proceeded for six years. In June 2006 another Excise Inspector took charge there, and thereafter he somehow closed the investigation and submitted final report before the Judicial First Class Magistrate Court I, Kollam showing the two accused as absconding. Nobody made any effort to arrest the two accused till 2006. After complying with the procedural formalities the learned Magistrate committed the case to the Court of Session, from where in twas made over to the learned Additional Sessions Judge, (Ad Hoc) III, Kollam for trial and disposal.
2. Though not arrested during investigation, the two accused appeared before the learned Magistrate during the committal proceedings, and they were defended by a counsel of Crl.A Nos.129 & 130 of 2013 3 their choice. The two accused appeared before the trial court and pleaded not guilty to the charge framed against them under Sections 55(a) and 55(g) of the Kerala Abkari Act (for short 'the Act'). The prosecution examined four witnesses including the detecting officer and proved Exts.P1 to P7 documents. Though the properties were initially produced before the learned Magistrate, later the properties happened to be produced before the Deputy Commissioner of Excise in 2010, without any quantity of liquid or arrack in any of the cans. So there was no property to be identified during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances and projected a defence of total denial. They did not adduce any evidence in defence inspite of the opportunities granted by the trial court. On an appreciation of the evidence, the trial court found the two accused guilty under Sections 55(a) and 55(g) of the Act. On conviction they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of 1 lakh each under the two sections by judgment dated 28.1.2013. Aggrieved by the judgment of conviction the couple have come up in appeal.
3. When these two appeals came up for hearing, the Crl.A Nos.129 & 130 of 2013 4 learned counsel made submissions on four aspects. One is the unexplained delay in producing the properties in court, the other is regarding identification of the accused, the third is regarding the number of the house where the offence was allegedly detected, and the fourth is regarding the incompetence of the person before whom the properties were produced. The learned counsel further submitted that in view of the dubious circumstances including the unexplained delay in producing the properties, the other factual aspects need not be looked into.
4. Of the four witnesses examined by the prosecution PW4 is the Excise Inspector who detected the offence, PW3 is the Excise Inspector, who closed the investigation and submitted final report in court, and the others are the independent witnesses. They turned hostile during trial. The offence was detected in 2000, but PW3 took over investigation only in June 2006. The crime remained unattended by anybody for about six years, without anybody making any earnest effort to trace out the accused or to arrest the accused. It is not known who had in fact conducted investigation upto June 2006. Just after PW3 joined there as Inspector, he just closed the investigation and submitted final report in court. Thus he is not actually the Crl.A Nos.129 & 130 of 2013 5 person who conducted the investigation. His role was practically to submit the final report in court. Thus the person who actually investigated the crime was not examined by the prosecution. The final report does not even contain his name or details. This is the way in which this case was dealt with by the Excise Officials. Let the government look into the matter appropriately and deal with the officers according to law.
5. Though the offence was detected long back in 2000, the case came up for trial only in 2012. By that time everything in the ten plastic cans was lost. There was not even a drop of liquor in any of the ten cans when the case came up for trial. After taking the required sample, the quantity of wash contained in two barrels was destroyed at the spot of detection itself by PW4. However, he took sample from one of the barrels, and from one of the cans. All the properties including the sample bottles were produced in court only on 4.11.2006. There is absolutely no explanation for the delay in producing the properties in court. It is not known in whose custody or possession the properties were, or whether the properties were in the safe custody of any officer till 4.11.2006.
6. According to the prosecution the huge quantity of Crl.A Nos.129 & 130 of 2013 6 wash and arrack was seized from a shed attached to the house of the two accused. The evidence of PW4 is that just when the party led by him reached there, the two accused ran off and escaped. Admittedly, the shed does not have any number. The mahazar or the search list does not contain the number of the house to which the shed is attached. PW4 has no explanation why he did not mention the house number in the mahazar or in the search list. If at all the shed does not have any number, the Excise Inspector could have stated the number of the house in the mahazar or in the search list. It is not known what is the house number, or to whom the said house belongs. Admittedly, two persons ran off and escaped just when the team reached there. PW4 has stated in his evidence that he had no prior acquaintance with the persons who ran off and escaped. He has also no case that he had sufficient opportunity to see the face and physical features of the persons who took to their heels at the spot. He does not explain how exactly he saw and identified the two persons who ran off and escaped. The necessary details were not elicited by the learned Prosecutor also. In short, the evidence of the detecting officer does not convince the court as to how exactly he could identify that the man and the woman Crl.A Nos.129 & 130 of 2013 7 who ran off and escaped. He does not even know the number of the house to which the shed wherein the contraband articles were found, is attached. Thus, practically there is no evidence to prove that the contraband articles were in fact seized from the house or shed belonging to the two accused or that the two persons who ran off and escaped from the scene are in fact these two accused. On this ground itself the appellants are entitled for acquittal.
7. I find yet another strange procedure in this case. All the properties including the sample bottles were produced before the learned Magistrate on 4.11.2006. The two sample bottles were received there, and the other items were returned to the Excise Inspector for safe custody. Curiously enough those properties happened to be produced before the Deputy Commissioner of Excise after ten years. It is not known how the properties happened to be produced before the Deputy Commissioner when the properties were in court custody. There is nothing to show that such production was authorised by the learned Magistrate, or by the trial court. Instead of producing the properties before the Assistant Commissioner of Excise, as the right officer authorised under Section 67B of the Act, the Crl.A Nos.129 & 130 of 2013 8 properties were produced before the Deputy Commissioner of Excise. There is an inventory prepared by the Deputy Commissioner of Excise in 2010. The detection was made in 2000. No value can be attached to the inventory prepared after ten years. There is no certificate from the learned Magistrate, certifying the genuineness and the contents of the inventory prepared by the Deputy Commissioner of Excise.
8. The law under Section 57B of the Act is that when any property is seized on detection of an offence under the Kerala Abkari Act the detecting officer shall produce the properties before the authorised officer appointed under Section 67B of the Act. On getting the properties, the authorised officer will have to prepare an inventory and get it certified by the learned Magistrate having jurisdiction. Such an inventory certified by the learned Magistrate will have evidentiary value. Here there is only an inventory prepared after ten years. No certificate required under the law is seen attached to the inventory. There is no explanation why such a certificate was not obtained from the concerned judicial Magistrate. There is also no explanation how the properties happened to be produced before the Deputy Commissioner of Excise when the Assistant Excise Commissioner Crl.A Nos.129 & 130 of 2013 9 is the authorised officer appointed under Section 67B of the Act. These are all serious infirmities in the whole prosecution. A case involving huge quantity of wash and arrack was carelessly spoiled by the Excise Officials. This culpable negligence will have to be examined by the government and appropriate action will have to be taken against the concerned officer. There is no explanation why the Excise Inspector who submitted final report did not even show name and details of the person who investigated the case. PW3 is only the person who stepped in at the last stage, just to close the investigation and submit final report. He does not know anything more. There is no explanation as to what happened to the case from 2000 to 2006 or why the properties were not produced in court without any delay, or how the properties happened to be produced before a wrong officer, and that too after ten years. I find that the benefit of all these serious infirmities and illegalities must necessarily go to the accused, whatever be the factual aspects.
In the result these two appeals are allowed. The appellants are found not guilty of the offence under Sections 55(a) and 55
(g) of the Kerala Abkari Act. They are acquitted of the said offence in appeal under Section 386(b)(i) of the Cr.P.C. Crl.A Nos.129 & 130 of 2013 10 Accordingly the conviction and sentence against the appellants in S.C No.928/2007 of the court below will stand set aside.
Sd/-
P.UBAID, JUDGE //True Copy// P.A to Judge ab