Sathyan vs The State Of Kerala

REPORTABLE 2023 INSC 703

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2363 OF 2023 arising out of SLP (Crl.) No. 9710/2023 [@Diary No. 16317/2022]

SATHYAN …APPELLANT

Versus

STATE OF KERALA …RESPONDENT

JUDGMENT

SANJAY KAROL J.,

1. This appeal is at the instance of the Accused-Appellant

namely, Sathyan against the order and judgement dated 5th

September, 2019 passed by the High Court of Kerala at Ernakulam

in Criminal Appeal No. 2822 of 20081, wherein his prayer to set

aside the conviction in S.C. No. 1140 of 2006 under Section 8 of

the Abkari Act, Signature Not Verified was denied and the findings returned by Digitally signed by Indu Marwah Date: 2023.08.11 16:17:57 IST Reason:

1 Hereinafter referred to as the "impugned judgement" 2

Additional District & Sessions Judge, Fast Track (Ad Hoc-11),

Kozhikode, in judgment dated 3rd November, 2008, were endorsed.

BRIEF FACTS

2. On 1stOctober 2003, the Appellant was arrested for carrying

five litres of Arrack, in a jerry can, in his autorickshaw. The case

was registered before the court of the Judicial Ist Class Magistrate,

Kunnamangalam taking on the number C.P.36/06. Subsequently,

the matter was committed, and eventually, made its way to the

Court of Additional District & Sessions Judge, Fast Track (Ad Hoc-

11), Kozhikode2.

3. Having framed 3 issues for consideration, the learned trial

Court examined the testimonies of PW–1 who was the Excise

Inspector Kunnamangalam range and the person who had

detected the offence; PW–2, the Assistant Excise Inspector who

was with PW-1 and that of PW–3, who was an independent witness

but turned hostile.

4. On the first issue of the possession and recovery of arrack

from the Appellant, and the second, concerning his guilt therefor,

the court returned findings in the affirmative on the basis of the

2 Hereinafter “trial court” 3

testimonies of PW-1 namely Raveendandrananthan and PW-2,

namely, C.K Manoharan, while acknowledging that both of these

witnesses were official witnesses, and looking into decisions

rendered by this court on that aspect, stated that no reason could

be found to disbelieve their evidence or to believe that the articles

in question, referred to as “thondi articles” were tampered with.

5. On sentencing, which was issue No. 3, the Court stated that

it was a case not fit to be accorded the benefit of the Probation of

Offenders Act, 1958 and therefore the Appellant was sentenced to

one year of imprisonment and a fine of one lakh rupees and, in

default thereof, an additional period of 6 months rigorous

imprisonment.

THE IMPUGNED JUDGEMENT

6. The High Court has observed that the ground of unexplained

delay, on behalf of the Appellant, holds no merit as the Magistrate’s

endorsement indicates that the material was produced on the first

day and it was directed to be produced on the next working day.

7. The ground of delay in submitting the final report that is,

nearly 3 years from the date of detection, was negatived by the

court on the ground that the judgement relied on by the counsel 4

for the Appellant3 has been declared per incurium by a subsequent

judgement.4 The effect thereof being that delay, ipso facto, is not

fatal to the case of the prosecution.

8. On the interpolation in the Mahazar, i.e., ext. P1 it was

observed that the same could not be given too much importance

as the crime and occurrence report registered on the same day

stated that the sample collected was indeed a sample of 180ml and

not 375 ml as was initially written on such exhibit. The chemical

examiners report also notes that the sample was received with its

seal intact and therefore no doubt could be seen from the point

that the sample drawn was from the contraband recovered from

the Appellant.

9. In view of the above findings, vide the impugned judgement,

the sentence handed down was confirmed.

10. Hence the present appeal.

ANALYSIS AND CONSIDERATION

11. Section 8 of the Abkari Act reads as follows-

“8. Prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack. – [(1) No person shall manufacture, import export [without permit transit] possess, store, distribute, bottle or sell arrack in any form.]

3 Krishnan H. v. State, [2015 (1) KHC 822]; 2014 SCC OnLine 28741 4 Santosh T.A. & Anr. v. State of Kerala [2017(5)KHC 107] 5

[(2) If any person contravenes any provisions of sub- section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.”]

12. The grounds of challenge, as urged by the Appellant are that-

in the absence of independent witnesses, the investigation cannot

be sustained since the detecting officer and investigator were both

official witnesses; there is interpolation in the Mahazar with

respect to the quantity of the sample initially being written as 375

ML but then subsequently been corrected to 180 ML; there is

unexplained delay in production of the contraband before the trial

court; the evidence of PW-2(C.K Manoharan) clearly shows that he

was not aware of the seizure and also that he was not present at

this spot; members of the patrol team were not made into

witnesses; independent witnesses who signed the Mahazar were

not examined, et cetera.

13. The question that we must consider is whether the

conviction, solely on the basis of official witnesses is sustainable

in the present facts? And, whether the delay of nearly 3 years in

filing the challan can be said to be materially affecting the

correctness of the judgement of the lower court as also the

judgement impugned before us?

6

14. The trial court, when faced with this question of the

conviction being based solely on the testimony of official witnesses,

referred to two judgements of this court in Tahir v. State ( Delhi)5

and Karamjiti Singh v. State (Delhi Administration)6 to observe

that, there is no bar on convictions being based solely on the

testimony of the police officials.

15. The act governing the instant dispute was brought into force

to “consolidate and amend the law relating to the import, export,

transport, manufacture, sale and possession of intoxicating liquor

and of intoxicating drugs in the [state of Kerala]…” The Narcotic

Drugs and Psychotropic Substances Act, 1985 has been brought

on the statute books to “amend the law relating to narcotic drugs,

to make stringent provisions for the control and regulation of

operations relating to narcotic drugs and psychotropic

substances…” Arguably, both these statutes seek the regulation of

similar products, with the purpose of controlling the flow of

identified substances. We find, in a case concerning the latter act,

a Constitution bench of this Court in Mukesh Singh v. State (NCT

of Delhi)7, having noted as follows:-

“10.1. Under Section 173 CrPC, the officer in charge of a police station after completing the investigation is

5 (1996) 3 SCC 338 6 (2003) 5 SCC 291 7 (2020) 10 SCC 120 7

required to file the final report/charge-sheet before the Magistrate. Thus, under the scheme of CrPC, it cannot be said that there is a bar to a police officer receiving information for commission of a cognizable offence, recording the same and then investigating it. On the contrary, Sections 154, 156 and 157 permit the officer in charge of a police station to reduce the information of commission of a cognizable offence in writing and thereafter to investigate the same… xxx

12. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightaway acquitted unless and until the accused is able to establish and prove the bias and the prejudice.

As held by this Court in Ram Chandra [State of Rajasthan v. Ram Chandra, (2005) 5 SCC 151 : 2005 SCC (Cri) 1010] the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case [see Vipin Kumar Jain [Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579] ].

xxx 12.2. Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record.

xxx 13.2. (II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the 8

sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case-to-case basis. A contrary decision of this Court in Mohan Lal v. State of Punjab [Mohan Lal v. State of Punjab, (2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.”

(emphasis supplied)

16. Therefore, it can no longer be said to be res integra that the

person receiving the information of the crime or detecting the

occurrence thereof, can investigate the same. Questioning such

investigation on the basis of bias or such like factor, would depend

on the facts and circumstances of each case. It is not amenable to

a general unqualified rule that lends itself to uniform application.

17. The submission made by the learned counsel for the

Appellant is that the fairness of the investigation was compromised

since the person who detected the crime and the person who

investigated, were one and the same. It was further submitted that

the official witnesses being unreliable, independent witnesses are

an indispensable requirement in the present case.

18. K.S Hegde J., writing for the court in the landmark A.K.

Kraipak v. Union of India8 observed as under:-

“It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is

8 (1969) 2 SCC 262 9

reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient.

There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. “

19. The concept of bias has been delved into by a two Judge

Bench of this Court in N.K. Bajpai v. Union of India9 as

follows:-

“48 Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action with reference to the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial chastisement but if it falls in the latter, it would hardly affect the decision, much less adversely.

20. In the present instance, nothing has been put forward to

show that there may be a reasonable ground for the presence of

bias or that there may be “a real danger of bias” and therefore the

9 (2012) 4 SCC 653 10

bald plea of the investigation not been fair, judicious does not

support the case of the Appellant.

21. From the above discussion, it is clear that simply because the

person who detected the commission of the offence, is the one who

filed the report or investigated, such an investigation cannot be

said to be bad in law. That particular submission therefore must

necessarily be negatived. We also notice that, the judgement of the

trial court categorically records that the person conducting the

investigation was PW-4 and neither PW-1 nor PW-2, on whose

testimonies the court has relied to hand down a verdict of

conviction. On that ground also, the submission of the Appellant,

must be negatived.

22. Conviction being based solely on the evidence of police

officials is no longer an issue on which the jury is out. In other

words, the law is well settled that if the evidence of such a police

officer is found to be reliable, trustworthy then basing the

conviction thereupon, cannot be questioned, and the same shall

stand on firm ground. This Court in Pramod Kumar v. State

(Govt. of NCT of Delhi)10

13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001

10 (2013) 6 SCC 588 11

SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.

23. Referring to State (Govt. of NCT of Delhi) v. Sunil11, in

Kulwinder Singh v. State of Punjab12 this court held that: –

“23. … That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence.”

24. We must note, that in the former it was observed:-

“21… At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature… If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume

11 (2001) 1 SCC 652 12 (2015) 6 SCC 674 12

the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

25. Recently, this Court in Mohd. Naushad v. State (NCT of

Delhi13) had observed that the testimonies of police witnesses, as

well as pointing out memos do not stand vitiated due to the

absence of independent witnesses.

26. It is clear from the above propositions of law, as reproduced

and referred to, that the testimonies of official witnesses can nay

be discarded simply because independent witnesses were not

examined. The correctness or authenticity is only to be doubted

on “any good reason” which, quite apparently is missing from the

present case. No reason is forthcoming on behalf of the Appellant

to challenge the veracity of the testimonies of PW – 1 and PW – 2,

which the courts below have found absolutely to be inspiring in

confidence. Therefore, basing the conviction on the basis of

testimony of the police witnesses as undertaken by the trial court

and is confirmed by the High Court vide the impugned judgement,

cannot be faulted with.

27. Further submission made on behalf of the Appellant was,

“delay”, in two aspects; one, the contraband being produced

13 2023 SCC OnLine SC 784 13

before the Magistrate and two, in the completion of investigation,

i.e., from the arrest of the Appellant on 1st October, 2003, to the

completion of the investigation on 17th April 2006. The first, is a

superficial ground, plainly negated by record. The trial court has

recorded in its order that the day after the arrest of the Appellant,

2nd October, 2003 was a holiday and therefore the contraband

seized was, upon directions produced before the concerned

Magistrate on the next working day, that being, 3 October 2003.

This being the uncontroverted position, the production of the

seized Arrack cannot be said to be delayed.

28. The second aspect of delay, however, assumes importance. It

has been time and again observed that a “fair trial”, is a right

flowing from Article 21 of the Constitution of India and it

encompasses all stages of trial including that of “investigation,

inquiry, trial, appeal, revision and the trial”14 In Dilawar v. State

of Haryana15 referring to various landmark judgements of this

court, a bench of 2 learned Judges, observed: –

“7. It is not necessary to refer to all the decisions of this Court articulating the mandate of the Constitution that there is implicit right under Article 21 for speedy trial which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial. To determine whether undue delay has occurred, one must have regard to nature of offence, number of accused and witnesses, workload of the court and the investigating

14 A.R Antulay v. R.S Nayak, (1992)1 SCC 225 (5-Judge bench) 15 (2018) 16 SCC 521 14

agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when accused is in custody so that prosecution does not become persecution. Court has to balance and weigh several relevant factors. Though it is neither advisable nor feasible to prescribe any mandatory outer time-limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution,… This obligation flows from the law laid down by this Court inter alia in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , Hussainara Khatoon (I) v. State of Bihar [Hussainara Khatoon (I) v. State of Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23] , Abdul Rehman Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93] and P. Ramachandra Rao v. State of Karnataka [P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : 2002 SCC (Cri) 830] .” (Emphasis supplied)

29. A perusal of the record does not reflect any of the factors

enumerated above, to come to the aid of justifying the delay in

investigation of the instant offence, leading the final report to be

submitted after nearly 3 years. the contraband substance was

recovered immediately, only a few witnesses were examined, and

even if systemic delays on account of transfer of personnel is

considered, daytime elapsed between the date of the offence and

the submission of the final report cannot be justified.

30. However, mere urging that delay casts a suspicion on the

investigation, without any evidence being led in furtherance

thereof, cannot be sustained. Inordinate delay has been taken as

presumptive proof of prejudice, but in particular cases where the

accused is in custody. Record reveals that the accused was 15

released on bail on 21st October 2003. Hence, the presumption of

prejudice will not apply in the instant facts.

31. Other grounds urged such as interpolation in the Mahazar,

are in the attending facts, not of such significance so as to vitiate

the entire case of the prosecution. Also, it has concurrently been

found by both the learned courts below that such interpolation i.e.,

quantity of the sample being initially noted as 375ML and

subsequently been corrected to 180 ML, with the latter indeed

being the correct quantity stands corroborated by the unharmed

sample, in sealed condition reaching the laboratory for chemical

analysis as also the report generated therefrom which notes the

sample to be corresponding to the latter, corrected quantity.

32. In view of the above discussion, we find that the Appellant’s

grounds to challenge the correctness of the judgement impugned,

fail.

33. However, considering the facts at hand, that the offence in

question is dated 1st October 2003; the final report after delayed

investigation was submitted on 17th April 2006, he was convicted

on 3rd November 2008, and that more than 20 years have passed

since the commission of the offence, this court finds it fit to modify

the sentence of the Appellant to serve a period of three months, 16

simple imprisonment. The fine as awarded by the trial court and

as upheld by the High Court, is confirmed.

34. Considering the economic status, the period of time to deposit

the fine by the Appellant, as awarded, is extended by a period of

one year. The judgment of the trial court shall stand modified, also

to that extent.

35. The appeal is partly allowed in the terms indicated above.

36. The exemption from surrender as granted vide order dated

14th June 2022, stands vacated. The Appellant is directed to

surrender before the court concerned, forthwith.

37. Interlocutory applications, if any, shall stand disposed of.

38. Costs easy.

--------------------------J. (ABHAY S. OKA)

--------------------------J. (SANJAY KAROL)

DATED : AUGUST 11, 2023;

PLACE : NEW DELHI.