This criminal appeal was heard by the High Court of Kerala. The court allowed the appeal, setting aside the conviction and sentence, and acquitted the appellant due to procedural irregularities in sample handling and absence of a forwarding note.
Conviction and sentence set aside; appellant stands acquitted.
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 B.KEMAL PASHA
FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938
CRL.A.No. 1004 of 2009 (A)
SC 107/2002 OF ADDL SESSIONS COURT (FAST TRACK)III, THIRUVANANTHAPURAM
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APPELLANT/ACCUSED:
CHELLYYAN,S/O PONNU PILLAI, MANKUZHI VEEDU, CHENKAVILA, PARAVODE DESOM, METHUKUMMAL VILLAGE, KANYAKUMARI.
BY ADV. SRI.P.BABU KUMAR
RESPONDENT(S)/COMPLAINANT:
1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. CIRCLE INSPECTOR OF POLICE, PARASALA POLICE STATION,, THIRUVANANTHAPURAM.
BY GOV PLEADER SRI HRITWIK C.S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 1004 of 2009 ............................................................... Dated this the 16th day of December, 2016
J U D G M E N T
The appellant is the accused in S.C.No.107/02 of the Additional Sessions Court(Adhoc-III), Thiruvananthapuram, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for six more months.
Crl. Appeal No. 1004 of 2009
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contraband through Ext.P2 mahazar. On reaching the Police Station, he registered Crime No.137/1999 against the accused under Section 8(2) of the Abkari Act, through Ext.P7 FIR. The property was produced before court through Ext.P9 property list. Forwarding Note was allegedly furnished. The investigation was conducted by PW1 Circle Inspector of Police, Parassala. He filed the final report on getting Ext.P1 certificate of chemical analysis, which shows that the sample contained 24.31% by volume of ethyl alcohol.
below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.
Crl. Appeal No. 1004 of 2009
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that no sample was drawn by PW5 on the spot in the presence of the accused, and that there is no evidence as to the date on which the sample was allegedly drawn in this case and such a sample was allegedly forwarded to the laboratory.
it is evident that no sample was drawn by PW5 on the spot in the presence of the accused. He simply seized the contraband and produced the same before Court on 16.10.1999 through Ext.P9 property list. In Ext.P9 property list there is a submission made by some officer attached to the court as follows: “Submission – May be ordered to keep the MOs with Pozhiyur Police Station.” The same is seen granted by the learned Magistrate also. There is no evidence in this case as to when the MO was taken away by the police and there is no evidence as to when the material object was returned to the court.
Crl. Appeal No. 1004 of 2009
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Class Magistrate's Court, Neyyattinkara has deposed that he had drawn a sample of 150 ml as per the orders of the court and forwarded the same for chemical analysis, the prosecution has not produced any document to show that PW6 was authorised by the learned Magistrate to draw any such sample. No such order has been produced. Even Ext.P9 does not show that any sample was drawn from the contraband. Had any sample been drawn from the contraband on 16.10.1999 as contended by PW6, definitely such a fact would have found a place in Ext.P9. When Ext.P9 property list shows that the property was returned to the police, it cannot be believed that any sample was drawn on that date.
Crl. Appeal No. 1004 of 2009
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analysis. Even the records of the court below does not contain the copy of the Forwarding Note. Matters being so, it is not at all safe to rely on the contents of Ext.P1 to enter in a conviction. Therefore, the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Criminal Appeal is allowed, and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
1 issue framed by the court
Whether the conviction and sentence under Section 8(2) of the Abkari Act should be set aside due to lack of evidence regarding spot sample drawing and forwarding note.
1 provisions across 1 enactments
Chellyyan
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
