The High Court set aside the conviction and sentence of the appellant under Section 58 of the Abkari Act. The acquittal was ordered due to inordinate delay in producing the seized sample for chemical analysis and lack of evidence regarding the sample's safe custody.
The appellant is acquitted; the conviction and sentence passed by the court below are set aside.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938
CRL.A.No. 260 of 2009 ( )
SC 350/2008 of ADDITIONAL SESSIONS COURT (ADHOC)-I, THRISSUR IN S.C.NO. 350/2008
APPELLANT(S)/ACCUSED::
MANOHARAN, S/O. SUBRAN, KOVATIL HOUSE, PUSHPAGIRI DESOM, MELOOR, CHALAKUDY VIA.,THRISSUR DISTRICT.
BY ADV. SRI.M.H.HANIL KUMAR
RESPONDENT(S)/COMPLAINANT/STATE::
STATE OF KERALA
INSPECTOR OF POLICE, KORATTY POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. C.S.HRITWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
B. KEMAL PASHA, J.
Crl. Appeal No.260 of 2009
Dated this the 19th day of August, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Appellant is the accused in SC No.350/2008 of
the Additional Sessions Court, Adhoc-I, Thrissur, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for two months.
Crl.A.260/2009
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police station, he registered Ext.P6 FIR. On the next day, he produced the accused, sample and the contraband before court. Ext.P7 is the property list. Forwarding note was filed. PW4, Sub Inspector of Police, Koratty, conducted the investigation and filed the final report on getting Ext.P3 certificate of chemical analysis.
Crl.A.260/2009
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sample before the court below and the prosecution has not adduced any evidence to show the safe custody of the sample till its production before the court below for forwarding it for chemical analysis.
Crl.A.260/2009
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reveals that the contraband along with the sample and the glass tumbler were produced before the learned Magistrate at 1 p.m. on 16.04.2006 at the residence of the learned Magistrate. The same were returned with a direction to produce it on the next working day. Subsequently, it seems that the properties were produced on 09.05.2006 only. Ext.P8 is the copy of the forwarding note. It shows that the forwarding note was filed on 06.06.2006 only. On 09.05.2006, when the contraband and sample were produced before the learned Magistrate, the sample alone was retained in court and the contraband was returned. It is evident that there was inordinate delay in the production of the sample before court. Even though the sample was returned on 16.04.2006 with a direction to produce it on the next working day, it is evident from Ext.P7 that the sample was again produced on 09.05.2006 only. The delay in production of the sample has not been explained in any
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manner. Over and above it, there is no evidence to show as to who was the custodian of the sample for the period from 16.04.2006 to 09.05.2006. Therefore, the possibility of tampering with the sample cannot be ruled out. In such case, it is not at all safe to rely on Ext.P3 and to treat the same as the certificate of chemical analysis in respect of the sample drawn from the contraband allegedly seized from the possession of the appellant. On that ground, 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 as against the appellant are set aside. The appellant is acquitted.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/19/08
// True Copy //
PA to Judge
2 issues framed by the court
Whether the conviction and sentence under Section 58 of the Abkari Act should be set aside due to inordinate delay in producing the sample for chemical analysis and lack of evidence regarding safe cus
Whether the chain of safe custody of the sample was established to preclude tampering?
2 provisions across 1 enactments
MANOHARAN
STATE OF KERALA
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
