The High Court allowed a criminal appeal against conviction and sentence for transporting arrack under Section 8(2) of the Abkari Act, as the failure to draw contraband samples in the accused's presence and lack of sealing evidence rendered the chemical analysis unsafe for conviction.
Conviction and sentence set aside; appellant 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
THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938
CRL.A.No. 228 of 2009 ( )
AGAINST THE JUDGMENT IN SC. NO.906/2001 OF ADDL. SESSIONS COURT (FAST TRACK-III), THIRUVANANTHAPURAM DATED 30-12-2008.
APPELLANT/ACCUSED:
GIRIJA, D/O.KAMALAMMA, THUYUR THUNDUTHATTUVEEDU, PAZHAMALA, PERUNKADAVILA DESOM, PERUNKADAVILA VILLAGE, NEYYATTINKARA.
BY ADV. SRI.M.SREEKUMAR.
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.S. HRITHWIK.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 228 of 2009
............................................................... Dated this the 23rd day of August, 2016
J U D G M E N T
The appellant is the accused in S.C.No.906/2001 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 2 years and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for six more months.
in a can at a place called Muttavila, in contravention of the provisions of the Abkari Act.
Crl. Appeal No. 228 of 2009
-: 2 :-
accused under arrest through Ext.P2 arrest memo. He produced the accused along with the records and the contraband at the Excise Range Office, Amaravaila. PW4 Excise Inspector, Amaravila registered Crime No.26/99 through Ext.P5 crime and occurrence report. He produced the contraband before court through Ext.P6 property list. Forwarding Note was also furnished, the copy of which is Ext.P7. PW5 Excise Inspector, Amaravila conducted the investigation and filed the complaint on getting Ext.P8 certificate of chemical analysis.
Crl. Appeal No. 228 of 2009
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that the court below ought not to have relied on Ext.P8 certificate of chemical analysis to convict the accused.
Crl. Appeal No. 228 of 2009
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contraband and forwarded the same as per the orders of the learned Magistrate. On a perusal of Ext.P6, it seems that the contraband was produced before court on 26.04.1999
itself. At the same time, Ext.P6 does not show any endorsement relating to the order passed by the Magistrate thereby empowering PW6 to draw the sample.
made through an endorsement in Ext.P6 as follows: “ Thondi item may be ordered to be kept in the Excise Office, Amaravila until further orders”. It seems that the learned Magistrate has approved the said submission by writing the term “Yes” with his initial and date as 28.04.1999. There is absolutely nothing to show as to the date on which the sample was drawn from the contraband. Even PW6 has no case that the sample was drawn from the contraband in the presence of the accused. If, as a matter of fact, the sample was drawn on 26.04.1999, the thondi article as such could not have been returned on 28.04.1999. There is nothing to
Crl. Appeal No. 228 of 2009 -: 5 :-
show in Ext.P6 that the property was in a sealed state.
Matters being so, it cannot be said that there was no chance of tampering with the contraband. There is no evidence to
show that the sample was drawn on 26.04.1999, apart from the oral testimony of PW6. From all the above, this Court is satisfied that it is not at all safe to rely on Ext.P8 to enter into a conviction for the offence under Section 8(2) of the Abkari Act. Therefore, the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act 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.
ul/-
Sd/- B. KEMAL PASHA, JUDGE. // true copy //
P.S. to Judge.
3 issues framed by the court
Whether conviction under Section 8(2) of the Abkari Act is safe when the sample of contraband was not drawn in the presence of the accused and evidence regarding sealing is absent.
Whether reliance on Ext.P8 certificate of chemical analysis is justified given procedural lapses in chain of custody.
Whether the impugned conviction and sentence should be set aside.
1 provisions across 1 enactments
GIRIJA
STATE OF KERALA
B. KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
