Abkari Act- Person Receiving Information Of Crime Or Detecting The Occurrence Can Investigate It: Supreme Court

While upholding a conviction under the Kerala Abkari Act, the Supreme Court observed that the testimonies of official witnesses can not be discarded simply because independent witnesses were not examined.

"The person receiving the information of the crime or detecting the occurrence thereof, can investigate the same", the bench of Justices Abhay S Oka and Sanjay Karol observed.

In this case, the accused- appellant was arrested for carrying five litres of Arrack, in a jerry can, in his autorickshaw. He was convicted under Section 8 of the Abkari Act which deals with the prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack. The High Court dismissed his appeal.

Before the Apex Court, the issues raised by the accused-appellant were: (1) 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 ? The contention raised was 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.

Regarding the first issue, the court said 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.

"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."

On the issue of delay, the Court examining the records, found that the production of the seized Arrack cannot be said to be delayed.

"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....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.", the court said.

Considering the fact that more than 20 years have passed since the commission of the offence, the bench modified the sentence to a period of three months simple imprisonment.

Sathyan vs State of Kerala | 2023 LiveLaw (SC) 627 | 2023 INSC 703

Abkari Act; Section 8 - The testimonies of official witnesses can not be discarded simply because independent witnesses were not examined - 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. (Para 16-26)

Criminal Trial - 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. (Para 30)

Constitution of India, 1950 ; Article 21 - 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. (Para 28)

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