Allowed

P.Gopi v. State of Kerala

Kerala HC10 Aug 2016CRL.A/147/2009

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals against conviction under the Abkari Act. The court quashed the conviction because the chemical analysis certificate did not show sample numbering matching that of the seized contraband, creating a break in the prosecution's evidence chain.

What did the court decide?

Conviction and sentence of the appellants under Sections 8(2) and 55(g) of the Abkari Act set aside; appellant stands acquitted.

P.Gopi Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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CRL.A.No. 147 of 2009 ( )

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-------------------------SC 522/2006 of ADDL.SESSIONS COURT (ADHOC)-II, ALAPPUZHA

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APPELLANT(S)ACCUSED NO. 3 :

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GOPI.P., S/O.PURUSHAN, PLAMOOTTATHIL HOUSE, WARD V.THEKKEKKARA PANCHAYATH, THEKKEKKARA KIZHAKKUM MURI, PALLIPPAD VILLAGE, ALAPPUZHA.

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BY ADV. SRI.S.SANAL KUMAR

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RESPONDENT(S)/COMPLAINANT :

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STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. P. MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2016, ALONG WITH CRA. 183/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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================ Crl.A. Nos.147 & 183 of 2009 ======================= Dated this the 10^th day of August, 2016

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JUDGMENT

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The appellant in Crl.Appeal No.147/2009 is A3 and the appellants in Crl.Appeal No.183/2009 are A1 and A2 in S.C No.522/2006 of the Additional Sessions Court (Adhoc-II), Alappuzha, who stand convicted under Sections 8(2) and 55(g) of the Abkari Act and each of whom sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹1,00,000/-, in default, to undergo rigorous imprisonment for three more months, for each of the offences.

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The prosecution case is that on 18.12.2004 at 2.45 p.m., the appellants along with the other accused in the case were found engaged in brewing arrack at the western and eastern sides of a bund closed to a paddy field in possession of one Kodampallil Billy in Pallippad 5^th Ward,

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Crl.A. Nos.147 & 183 of 2009

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Pallippad Village. A quantity of 3850 litres of wash and 100 litres of arrack were seized.

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The offences were detected by PW6 Sub Inspector of Police and party, Haripad. PW6 seized the aforesaid quantity of contraband and samples were drawn. All the properties including the contraband and samples were seized through Ext.P1 mahazar. A1 to A3, who were the appellants herein, were placed under arrest at the spot. Other persons, who were present along with the appellants, ran away from the spot and escaped. They could not be apprehended. He produced the appellants before court on 19.12.2004. The properties were produced before court on 20.12.2004 through Ext.P9 property list. A16 in the case was subsequently arrested by PW8 Sub Inspector of Police, Haripad. On 16.01.2005, all the other accused in the case namely, A4 to A15 and A17 surrendered before court. PW7 completed the investigation and filed the final report on getting Ext.P10 certificate of chemical analysis.

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Crl.A. Nos.147 & 183 of 2009

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On the side of the prosecution, PWs.1 to 8 were examined, Exts.P1 to P12 were marked and MO1 series to MO7 series were identified. The court below found A1 to A3, who were the appellants herein guilty of the offenes punishable under Sections 8(2) and 55(g) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid. The court below acquitted all the other accused.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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The learned counsel for the appellants have argued that there is absolutely nothing to see that Ext.P10 certificate of chemical analysis in this case is pertaining to the samples allegedly drawn from the contraband involved in this case and therefore, the court below ought not to have relied on Ext.P10 to enter in a conviction of the appellants.

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The learned counsel for the appellants have pointed out that samples were drawn by PW6 on the spot as is

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Crl.A. Nos.147 & 183 of 2009

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evident from Ext.P1 seizure mahazar and the same were specifically numbered by PW6 as A1, B1, C1, D1, E1, A2, B2, C2, D2, E2, F2, G2, H2, I2, J2, K2, L2, A3, B3, C3, D3, E3, F3, G3, H3, I3, J3, K3, L3, M1, N1, O1, P1, Q1 etc. At the same time, Ext.P10 certificate of chemical analysis shows that the items subjected to chemical analysis were numbered as Items 1 to 69. The aforesaid numbering of samples resorted to by PW6 does not reflect in Ext.P10. According to the learned counsel for the appellants, therefore, it cannot be said that Ext.P10 pertains to the samples drawn by PW6 from the contraband.

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Ext.P9 is the property list, by which, the properties were produced before court. Item Nos.I, II, III, IV and V are the samples produced before court through Ext.P9. Item No.I is 5 bottles, each containing 180 ml. of arrack, marked and numbered as A1, B1, C1, D1 and E1. Item No.II is 5 bottles, each containing 180 ml. of arrack, marked and numbered as M1, N1, O1, P1 and Q1. Item No.III is 12

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Crl.A. Nos.147 & 183 of 2009

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bottles, each one of 750 ml. capacity, each containing 500 ml. of wash marked and numbered as A3, B3, C3, D3, E3, F3, G3, H3, I3, J3, K3 and L3. Item No.IV is 15 bottles, each one of 750 ml. capacity, each containing 500 ml. of wash, marked and numbered as A1, B1, C1, D1, E1, F1, G1, H1, I1, J1, K1, L1, M1, N1 and O1. Item No.V is 32 bottles, each one of 750 ml. capacity, each containing 500 ml. of wash, marked and numbered as items 1 to 32.

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When such marking and numbering were made as specifically noted in Ext.P1 and the said samples were produced with the aforesaid marking and numbering before court through Ext.P9, such markings and numberings should have reflected in Ext.P10 certificate of chemical analysis. Otherwise, the prosecution ought to have produced and proved the forwarding note to show that a different mode of numbering was adopted when the samples were forwarded to the laboratory for chemical analysis. In this case, the prosecution has not produced and proved the

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Crl.A. Nos.147 & 183 of 2009

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copy of the forwarding note. The copy of the forwarding note is not available in the case records also. On a perusal of Ext.P10, it seems that 69 sealed bottles, marked 1 to 69, were received at the laboratory and the same were subjected to chemical analysis. When there is nothing to show that Ext.P10 is in respect of Items I, II, III, IV and V samples produced before court through Ext.P9 on 20.12.2004, as rightly pointed out by the learned counsel for the appellants, the court below ought not to have relied on Ext.P10 to enter in a conviction of the appellants. Matters being so, the conviction and sentence passed by the court below on the appellants are liable to be set aside.

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In the result, both these appeals are allowed and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.

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Sd/- B.KEMAL PASHA, JUDGE

stu

//TRUE COPY//

P.A TO JUDGE.

Crl.A. Nos.147 & 183 of 2009

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P.Gopi v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.Gopi v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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