Allowed

Maheen v. State of Kerala

Kerala HC4 Aug 2016CRL.A/254/2009

Case brief

AI extract

What is this about?

The High Court acquitted the appellant challenging a conviction under Section 8(2) of the Abkari Act. The conviction was set aside because the chemical analysis certificate (Ext.P10) could not be linked to a sample drawn from the specific contraband due to lack of evidence regarding the sampling date and authority.

What did the court decide?

The conviction and sentence passed by the court below are set aside. The appellant is acquitted.

Maheen 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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THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938

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CRL.A.No. 254 of 2009 ( )

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-------------------------SC 1026/2001 of ADDL.DIST. COURT (ADHOC)III, TRIVANDRUM CP 352/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA

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APPELLANT(S)/1:

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MAHEEN, S/O.MASTHAM KUNJU, PLANKALA PUTHEN VEEDU, CHENKAVILA , AYIRA, KARODE VILLAGE.

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BY ADV. SRI.BLAZE K.JOSE

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RESPONDENT(S):

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING, SUB INSPECTOR OF POLICE, POZHIYOOR.

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BY PUBLIC PROSECUTOR SMT.P. MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.254 of 2009

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Dated this the 4^th day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.1026/2001 of

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the Additional Sessions Court, Adhoc-III,

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Thiruvananthapuram, who stands convicted under Section 8

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(2) of the Abkari Act and sentenced to undergo rigorous

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imprisonment for three years and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for one year.

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The prosecution case is that on 03.10.1999 at 9

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p.m., the accused was found transporting 25 litres of arrack

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in a 35 litre capacity can at the place called Chenkavila,

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Crl.A.254/2009

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: 2 :

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through the byline leading from Chenkavila to Ayira pond.

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The offence was detected by PW3. He seized

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the contraband through Ext.P1 mahazar and placed the accused under arrest through Ext.P5 arrest memo. He registered Crime No.132/1999 through Ext.P4 FIR. He prepared Ext.P8 property list and produced the contraband before court along with the forwarding note, the copy of which is Ext.P9. PW6, Circle Inspector of Police, Parassala, completed the investigation and filed final report on getting Ext.P10 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 6 were examined, Exts.P1 to P10 were marked and MO1 was identified. No defence evidence was adduced. The court 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.

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Heard learned counsel for the appellant and learned Public Prosecutor.

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Crl.A.254/2009

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: 3 :

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Learned counsel for the appellant has argued that PW3 Sub Inspector of Police, who had allegedly seized

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the contraband, had not cared to draw any sample from the contraband at the spot in the presence of the accused. The sample was allegedly drawn by PW5 Property Clerk without any authority or orders from the court and had allegedly forwarded it for chemical analysis. According to the learned counsel for the appellant, Ext.P10 could not have been relied on by the court below as the certificate of chemical analysis pertaining to the sample drawn from the contraband.

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PW1 and PW2, who were the independent witnesses cited and examined by the prosecution to prove the occurrence, have turned hostile to the prosecution and did not support the prosecution case. PW3, Sub Inspector of Police, Pozhiyoor, had seized the contraband through Ext.P1 mahazar. He placed the accused under arrest through Ext.P5 arrest memo. According to PW3, he had

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Crl.A.254/2009

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: 4 :

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produced the contraband along with the records and the accused before court on 04.10.1999. Ext.P8 is the property list, which shows that the can containing arrack was produced before court through Ext.P8 on 04.10.1999. The Junior Superintendent of the Judicial First Class Magistrate's Court-II, Neyyattinkara, where the contraband was produced on 04.10.1999 had made a submission in Ext.P8 as follows:- “ May be ordered to be kept at Pozhiyoor Police Station ”. The learned Magistrate then and there ordered the return of the contraband for keeping it in safe custody at Pozhiyoor Police Station.

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PW5 was the Property Clerk of the Judicial First Class Magistrate's Court-II, Neyyattinkara on 04.10.1999. According to him, the property was received by him and as per the direction of the Presiding Officer, a sample of 150 ml. was drawn and forwarded for chemical analysis. The endorsement in Ext.P8 does not show any such direction from the learned Magistrate. PW5, in cross-examination,

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Crl.A.254/2009

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: 5 :

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has answered that there is no such order from the Magistrate in Ext.P8. There is no other order to that effect in any of the records also.

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Apart from the above, PW5 has not deposed the date on which the sample was drawn. It is evident from the endorsements in Ext.P8 that the contraband produced on 04.10.1999 was returned. There is no evidence regarding the date on which the contraband was resubmitted before court and the date on which the sample was drawn by PW5. There is absolutely nothing to show the date on which the sample was forwarded for chemical analysis. As rightly pointed out by the learned counsel for the appellant, there is no evidence to prove that Ext.P10 pertains to any sample drawn from the contraband involved in the case. Matters being so, it is not all safe to convict the accused by relying on Ext.P10 certificate of chemical analysis. Therefore, the conviction and sentence passed by the court below are liable to be set aside.

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Crl.A.254/2009

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: 6 :

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In the result, this Criminal Appeal is allowed and the

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conviction and sentence passed by the court below as against the appellant are set aside. The appellant is acquitted.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/04/08

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// True Copy //

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PA to Judge

Maheen v. State of Kerala

Case brief

What is this about?

What did the court decide?

Maheen v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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