Kerala High Court
Sali vs State Of Kerala on 10 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
CRL.REV.PET NO. 2522 OF 2012
AGAINST THE JUDGMENT DATED 22.10.2012 IN Crl.A NO.108 OF 2010
OF 1st ADDITIONAL SESSIONS COURT,THODUPUZHA
ARISING JUDGMENT DATED 18.03.2010 IN SC NO.241 OF 2007 OF
ASSISTANT SESSIONS COURT, KATTAPPANA
REVISION PETITIONER/APPELLANT/ACCUSED:
SALI, S/O.BHASKARAN,VETTAMALAYIL HOUSE,
UDUMBANCHOLA VILLAGE,IDUKKI DISTRICT.
BY ADV SRI.LATHEESH SEBASTIAN
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
SANAL.P.RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON
10.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
This criminal revision petition is preferred impugning the
judgment of the learned 1st Additional Sessions Judge,
Thodupuzha in Crl.A.No.108 of 2010.
2. The revision petitioner herein is the sole accused
in Crime No.51/02 of the Excise Range Office, Udumbanchola,
registered for offence punishable under Section 8(1) and (2) of
the Abkari Act.
3. The prosecution case is that, on 28.06.2002 at
about 5.30 p.m., the accused was found carrying a plastic bottle
which contained around 1200 ml. of illicit arrack.
4. The learned Judicial First Class Magistrate,
Nedumkandam took cognizance of the offence as C.P.No.
60/2007. Thereafter, the case was committed to the Sessions
Court, Thodupuzha. The Court of Sessions, Thodupuzha made
over the case to the Assistant Sessions court, Kattappana for trial
and disposal.
5. The trial court convicted and sentenced the
accused to undergo simple imprisonment for six months and to
pay a fine of Rs.1,00,000/-, in default to undergo simple
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imprisonment for a period of one month.
6. The appellate court confirmed the conviction and
sentence. Impugning the judgment of the learned Additional
Sessions Judge, the accused preferred this revision.
7. Before the trial court, PWs.1 to 5 were examined,
Exts.P1 to P6 were marked and MO1 was identified. PW1 is the
Excise Circle Inspector who detected the offence. PW2, a
preventive officer attached to the office of PW1, who accompanied
PW1. PW3 is an independent occurrence witnesses as well as
signatory in the P2 mahazar. PW4 was the Excise Range Inspector
of Udumbanchola, who registered the crime against the accused.
PW5 is the Investigating Officer who laid final report before the
Court.
8. After the closure of the prosecution evidence, the
accused was questioned under Section 313(1)(b) of the Code of
Criminal Procedure. After full fledged trial, the Assistant Sessions
Judge convicted and sentenced the accused as aforesaid.
9. I have heard Adv. Sanal P. Raj, the learned Public
Prosecutor and Adv. Latheesh Sebastian, learned counsel appearing
for the revision petitioner.
10. The learned Public Prosecutor submitted that the
impugned judgment is legally sustainable and no interference,
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whatsoever, is warranted in this matter. He further submitted that
the prosecution has succeeded in alleging and proving the charge
against the revision petitioner.
11. Per contra, the learned counsel for the revision
petitioner submitted that the impugned judgment is illegal,
irregular and improper. Both the trial court and the appellate court
had failed to note the illegalities and improprieties in this case.
12. The learned counsel further submitted that the
prosecution has failed to allege and prove the charge against the
accused beyond reasonable doubt. He submitted that the penal
statutes are to be interpreted strictly within the four corners of
the Statute. Suspicion, however strong it may be, it would not be
a substitute for proof. The impugned judgment is based on
surmises and conjectures.
13. I have heard the rival submission of the counsel
for the parties and perused the records.
14. The learned counsel for the revision petitioner
contended that the investigation in this case was done after a
lapse of five years. The delay caused in investigation, ie.,
particularly with regard to the questioning of the material
witnesses and their statements, after a gap of five years, would be
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fatal to the prosecution story. That itself cuts the very root of the
prosecution story.
15. Before further discussion, it may be useful to
extract the relevant provisions of the Code of Criminal Procedure
and Abkari Act. Section 173(1) of the Code of Criminal Procedure
says that investigation should be completed without unnecessary
delay.
“173. Report of police officer on completion of investigation.–
(1) Every investigation under this Chapter shall be completed without
unnecessary delay.
(1A) The investigation in relation to 3 [an offence under sections 376, 376A,
376AB, 376B, 376C, 376D, 376DA, 376DB or 376E] from the date on which the
information was recorded by the officer in charge of the police station.]
(2) (i) As soon as it is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government, stating– (a) the
names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances
of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without
sureties;
(g) whether he has been forwarded in custody under section 170.
[(h) whether the report of medical examination of the woman has been attached
where investigation relates to an offence under 2 [ sections 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45
of 1860)].]
(ii) The officer shall also communicate, in such manner as may be prescribed by
the State Government, the action taken by him, to the person, if any, by whom the
information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the
report shall, in any case in which the State Government by general or special
order so directs, be submitted through that officer, and he may, pending the orders
of the Magistrate, direct the officer in charge of the police station to make further
investigation.
(4) Whenever it appears from a report forwarded under this section that the
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accused has been released on his bond, the Magistrate shall make such order for
the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police
officer shall forward to the Magistrate along with the report–
(a) all documents or relevant extracts thereof on which the prosecution proposes to
rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not
relevant to the subject-matter of the proceedings or that its disclosure to the
accused is not essential in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append a note requesting
the Magistrate to exclude that part from the copies to be granted to the accused
and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he
may furnish to the accused copies of all or any of the documents referred to in sub-
section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in
respect of an offence after a report under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in the form
prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in relation to a report
forwarded under sub-section (2).
50. Report of Abkari Officer gives jurisdiction to a competent
Magistrate. –
(1) Every investigation into the offence under this Act shall be completed
without necessary delay.
(2) As soon as investigation into the offences under this Act is completed, the
Abkari Officer shall forward a Magistrate, empowered to take cognizance of the
offence on a police report, a report in accordance with sub section (2) of section
173 of Code of Criminal Procedure, 1973.”
16. On going through Section 173(1) of the Code of
Criminal Procedure and Section 50(1) of the Abkari Act, it is
crystal clear that, an investigation in an offence be completed
without unnecessary delay. In the instant case, the questioning of
the material witnesses as a part of investigation was started after
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a gap of five years, which casts serious doubts in the prosecution
story.
17. In Jinto v. State of Kerala [2023 KLT Online
2004], it is held that, when there is unexplained delay in
completing investigation, same is fatal to the prosecution. The
relevant paragraphs are extracted below:
“20. In the case on hand, though the detection was
on 17.06.2006, the witnesses were questioned by the
investigating officer in the year 2009 i.e., after 3 years of
detection, and prosecution has not offered any explanation
for that delay. The final report also was laid against the
revision petitioner after three years of the incident.
21. No explanation has been given by the
prosecution as to why there was delay in completing the
investigation and filing the final report. Where there is
unexplained delay in completing investigation and filing the
final report, the same is fatal to the prosecution, [Reliance
placed on Krishnan H. v. State of Kerala (2015 (2) KLT
SN 8 (C.No. 11) = 2015 (1) KHC 822); Chandran v.
State (2016 (4) KLT 727 = 2016 (5) KHC 650).”
18. In the decision in Moothedath Sivadasan &
Another v. State of Kerala [2021 KLT 744], it is held as
under:
“The occurrence in this case was on 15.06.2000
and the final report was filed on 18.07.2002. There was
inordinate delay in filing the final report before the court.
As per S. 50 of the Act, every investigation into the
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offences under the Act shall be completed without
unnecessary delay. As soon as investigation into the
offences under the Act is completed, the Abkari Officer is
obliged to forward a report in accordance with sub-s. (2)
of S. 173 of the Cr. P.C. to a Magistrate empowered to
take cognisance of the offence on a police report. In this
case, the inordinate delay in filing the final report before
the court has not been explained by the prosecution.
Further, the then S.I. of Police, Iritty who filed the final
report before the court, was not examined as a witness for
the prosecution.”
19. This Court in the decision in Gangadharan v.
State of Kerala [2024(1) KHC 111] observed that unexplained
delay in completing the investigation and filing final report is fatal
to the prosecution. The relevant paragraphs are extracted
hereunder:
“34. Though the occurrence was on 10.09.2005,
the investigation was completed and charge sheet was laid
only on 28.09.2007, with a delay of two years. S.50 of the
Abkari Act says that, every investigation into the offences
under the Act shall be completed without unnecessary
delay. No explanation whatsoever has been offered by the
prosecution, for the delay of two years in completing the
investigation, and filing the final report. The unexplained
delay in completing the investigation, and filing the final
report is no doubt fatal to the prosecution. [See
Moothedath Sivadasan v. State of Kerala 2021 (1)
KLT 744, Kumaran P. v. State of Kerala and another
2016 (4) KLT 718].”
20. In the instant case also, no explanation,
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whatsoever is offered by the prosecution to explain the inordinate
delay in filing the charge sheet. It is further submitted that, PW3 –
an independent witness turned hostile to the prosecution. The
learned Counsel for the revision petitioner pointed out certain
material contradictions in the evidence of PW1 and PW2.
According to the learned counsel for the revision petitioner,
considering all the illegalities, infirmities and irregularities stated
above would casts serious doubts in the prosecution story. The
prosecution has failed to allege and prove the charge against the
revision petitioner/accused beyond reasonable doubt. It is trite
law that the penal provisions are to be interpreted within the four
corners of the statute.
21. On going through the records of the case and
upon hearing the rival submissions of the counsel for the parties,
I am of the view that the trial court and appellate court had
overlooked vital illegalities, infirmities or irregularities, which
cuts the very root of the prosecution case.
In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned judgment is set aside.
(iii) The revision petitioner/accused is acquitted and he is
set at liberty.
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(iv) The bail bond, if any, executed by the revision
petitioner stands cancelled.
(v) Fine, if any, paid by him shall be refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
msp