Allowed

Davis v. State of Kerala

Kerala HC25 Aug 2016CRL.A/224/2009

Case brief

AI extract

What is this about?

High Court allowed criminal appeal. The appellate court observed vast discrepancies in chemical analysis results of three samples allegedly drawn simultaneously from the same contraband. Deeming it unsafe to rely on the certificate for conviction, the court set aside the lower court's conviction and sentence, acquitting the accused.

What did the court decide?

Conviction and sentence set aside; appellant stands acquitted.

Davis Vs State of Kerala — Kerala HC (2016) — LawSathi Research

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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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THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938

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CRL.A.No. 224 of 2009 ( )

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AGAINST THE JUDGMENT IN SC. NO.260/2008 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK-I, THRISSUR DATED 24-01-2009.

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APPELLANT/ACCUSED:

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DAVIS, S/O. ANTONY, THUDIYAN HOUSE, KODAKARA VILLAGE.

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BY ADV. SRI.S.RAJEEV.

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RESPONDENT/STATE:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., (CRIME NO.39 OF 2006 OF KODAKARA POLICE STATION).

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BY PUBLIC PROSECUTOR SRI.C.S. HRITWIK.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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B.KEMAL PASHA, J.

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================

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Crl.A. No.224 of 2009

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======================= Dated this the 25^th day of August, 2016

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JUDGMENT

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The appellant is the accused in S.C.No.260/2008 of the Additional Sessions Court (Adhoc-I), Thrissur, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/-, in default, to undergo₹ simple imprisonment for two months.

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The prosecution case is that on 29.01.2006 at 3.45 p.m., the accused was found in possession of a 10 litre can containing 4 litres of arrack, on the bund of a canal in Kodakara Panchayat, in contravention of the provisions of the Abkari Act.

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PW2 Sub Inspector of Police, Kodakara, detected the offence. He seized the contraband through Ext.P1 mahazar. The accused was placed under arrest. Three samples of

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Crl.A. No.224 of 2009

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180 ml. each were drawn from the contraband. On reaching the Police Station with the accused, contraband, samples and records, he registered Ext.P2 FIR. The properties were produced before court through Ext.P4 property list. Forwarding note was furnished, the copy of which is Ext.P5. On getting Ext.P6 certificate of chemical analysis, PW4 Sub Inspector of Police, Kodakara filed the final report.

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On the side of the prosecution, PWs.1 to 5 were examined, Exts.P1 to P7 were marked and MOs.1 to 3 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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

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The learned counsel for the appellant has argued that Ext.P6 certificate of chemical analysis cannot be relied on to find the guilt of the accused in the case. It has been

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Crl.A. No.224 of 2009

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pointed out that even when three separate samples were allegedly drawn from the very same contraband, Ext.P6 reveals that sample No.1 contained 30.09, sample No.2 contained 34.94 and sample No.3 contained 27.74 percent by volume of ethyl alcohol. It is argued that, at any stretch of imagination, it cannot be held that the certificate of chemical analysis is in respect of three samples drawn from the very same contraband, that too simultaneously.

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It seems that PW2 has proved the seizure as well as the arrest of the accused. At the same time, the arrest memo has not been produced and proved. The evidence of PW2 is fully corroborated by the evidence of PW1 Police Constable, who had accompanied PW2 at the time of seizure. According to PW2, three samples were simultaneously drawn from the contraband and he produced the said samples before court through Ext.P4 property list. Ext.P4 property list clearly shows that the contraband and samples were produced before court through Ext.P4 on

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Crl.A. No.224 of 2009

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30.01.2006 itself.

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Ext.P5 is the copy of the forwarding note. It seems that no date has been affixed on the forwarding note. At the same time, the seal of the Judicial First Class Magistrate's Court, Irinjalakuda affixed on Ext.P5 clearly shows that the same was received in court on 12.04.2006 only. The same was forwarded by the learned Judicial First Class Magistrate to the Joint Chemical Examiner through covering letter dated 28.07.2006. At the same time, Ext.P6 shows that, as per the reference letter, the same was received on 23.04.2007 at the laboratory. It seems that unnecessarily, the production of the samples before the Joint Chemical Examiner was delayed.

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Whatever it is, it is a matter of concern that there is vast difference in the chemical examination results with regard to the three samples. When the three samples were allegedly drawn simultaneously from the very same contraband, at the most, there could occur only minor

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Crl.A. No.224 of 2009

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differences in the examination results. Here, there is vast differences in the examination results of the said three samples. It cannot be said that the samples subjected to chemical analysis through Ext.P6 are the samples drawn from the very same contraband. The benefit of the said doubt shall necessarily go through the accused. Based on Ext.P6 result of the chemical analysis, this Court is of the view that it is not at all safe to rely on Ext.P6 to convict the accused. Matters being so, the conviction and sentence passed by the court below are liable to be set aside.

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In the result, this Crl.Appeal is 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. No.224 of 2009

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Davis v. State of Kerala

Case brief

What is this about?

What did the court decide?

Davis 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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