High Court of Kerala allowed criminal appeal against conviction for illegal liquor sale. Court set aside conviction as prosecution failed to examine the person who took the sample or produce relevant documents regarding sampling.
Conviction and sentence set aside; accused acquitted; bail bond cancelled and accused set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 2ND DAY OF DECEMBER 2015/11TH AGRAHAYANA, 1937
CRL.A.No.103 of 2006
AGAINST THE JUDGMENT IN SC 238/2000 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC) -I, KOLLAM DATED 22-12-2005
APPELLANT/ACCUSED:
BALACHANDRAN, S/O. KARUNAKARAN, KARUMBIL VEEDU, ITHOTTUVA MURI, EAST KALLADA, KOLLAM.
BY ADVS.SRI.S.SUDHEESHKAR
SRI.K.SIJU
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE
SUB INSEPCTOR OF POLICE, KALLADA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. S. HYMA, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
---------------------------------------------Crl. Appeal No.103 OF 2006 ---------------------------------------------Dated this the 2nd day of December, 2015.
J U D G M E N T
The accused was prosecuted for the offence punishable
under Sections 55(a), (h) and (i) of Abkari Act. He was found guilty of the offence under Section 55(i) of Abkari Act and was therefore convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1 lakh with default clause of simple imprisonment for one year. Set off as per law was allowed.
Crl. Appeal No.103/2006
2
officers, he tried to escape. He was effectively intercepted and the big shopper was seized from his possession. On examination,
the big shopper was found to contain Indian Made Foreign Liquor in 10 bottles of 375 ml each, 2 bottles of 750ml each and 550 ml of 750 ml capacity. The cap of the bottle containing 550 ml liquid was seen opened. By taste and smell, the liquid was identified as foreign liquor. The accused was arrested and the money with him was seized. All the bottles were sealed in the presence of witnesses and the mahazar prepared in that regard is Ext.P1. He returned to the station and registered Crime No.145/98 as per Ext.P2 First Information Report. He had the accused produced before court so also the property seized from the possession of accused. Ext.P3 is the property list prepared by him. PW3 claims to have sent a forwarding note to the court calling upon the court to sent the sample for chemical analysis. He obtained chemical analysis report as per Ext.P4. He recorded the statement of witnesses, completed the investigation and laid charge before court.
Crl. Appeal No.103/2006 3
cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kollam. The said court made over the case to Additional District and Sessions Court (Adhoc) -I, Kollam for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offence under Sections 55(a), (h) and (i) of Abkari Act. The accused pleaded not guilty to the charge and claimed to be tried.
4
Crl. Appeal No.103/2006
contents of Ext.P1 mahazar are sufficient to show that the accused was dealing with contraband article. Accordingly, convicted and sentenced the accused as already mentioned.
Crl. Appeal No.103/2006
5
that the evidence of PWs 2 and 3 are sufficient to come to the conclusion that the contraband was seized from the possession of accused.
Crl. Appeal No.103/2006
6
sample from any one of the bottles. In fact, his evidence is to the effect that all the bottles were sealed at the time of detection itself. The only possibility therefore is the sample being taken by an employee deputed by the court. In such cases, it is well settled that the said person has to be examined to ensure that proper sampling has been done, and the relevant documents need to be produced. Further, no forwarding note is seen produced before the court below containing the specimen seal said to have been affixed by the detecting officer on the bottles. Further the evidence of PW3 shows that sample was taken from court. It means that an employee of the court has taken sample. As is pointed out by the learned counsel for the appellant, it is elementary that that person has to be examined and relevant document has to be produced. That has not been done. It is therefore difficult to uphold the findings of the court below in the light of the above discussion.
In the result, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted
Crl. Appeal No.103/2006
7
of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
2 issues framed by the court
Whether conviction can stand without examination of the person who took the sample of contraband liquor and production of relevant documents.
Whether the evidence regarding seizure and sealing of foreign liquor was sufficient to uphold the conviction.
Colour shows how this judgement treated each authority
Majeedkutty vs. Excise InspectorFollowed¶36
Majeedkutty vs. Excise Inspector (2015 (1) KLT 624)
3 provisions across 2 enactments
BALACHANDRAN
STATE OF KERALA
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
