Allowed

Raju @ Koonan Raju v. State of Kerala

Kerala HC29 Aug 2016CRL.A/290/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that serious doubts existed in the prosecution case due to the unavailability of the Detecting Officer, irregularities in handling seized contraband, and reliance on an unverifiable chemical analysis certificate.

What did the court decide?

The conviction and sentence passed by the Additional Sessions Court are set aside; the appellant is acquitted.

Raju @ Koonan Raju Vs State of Kerala — Cheque Dishonour | 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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MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

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CRL.A.No. 290 of 2009 (A)

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AGAINST THE JUDGMENT IN SC. NO.606/2004 OF ADDITIONAL SESSIONS COURT (FAST TRACK-I), THIRUVANANTHAPURAM DATED 31-01-2009.

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APPELLANT/1ST ACCUSED:

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RAJU @ KOONAN RAJU, S/O. CHELLAPPAN, KALAVARA MELEPUTHENVEEDU, ARANGAMUGAL, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE.

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BY ADV. SRI.P.V.ANIL.

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RESPONDENT/COMPLAINANT:

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

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BY SR. PUBLIC PROSECUTOR SRI.C.S. HRITWIK.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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CRL.A.No. 290 of 2009 (A)

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A1 COPY OF THE JUDGMENT DATED 31/07/2009 IN SC. NO.606/2004 ON THE FILE OF THE ADDL. SESSIONS JUDGE (FAST TRACK COURT-I), THIRUVANANTHAPURAM.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

B.KEMAL PASHA, J.

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

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Crl.A. No.290 of 2009

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======================= Dated this the 29^th day of August, 2016

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JUDGMENT

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The appellant is the 1^st accused in SC No.606/2004 of

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the Additional Sessions Court (Adhoc-I), Thiruvananthapuram, who stands convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for four years and to pay a fine of 1,00,000/-,₹ in default, to undergo simple imprisonment for one year.

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The prosecution case is that on 05.08.2001 at 10 a.m., the appellant was found engaged in selling arrack and the 2^nd accused was found collecting the sale proceeds at Aramkamukal Ela. A quantity of 5 litres of arrack and 20 litres of spirit contained in two cans of 10 litres capacity were seized. On seeing the Police party, the 2^nd accused and other persons, who were present there, ran away from the spot.

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Crl.A. No.290 of 2009

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The offence was detected by CW7 Sub Inspector of Police, Neyyattinkara, who was reported to be working in Kossova, during the trial of the case before the court below. The contraband was seized through Ext.P1 mahazar and the same was produced before court on 06.08.2001 through Ext.P2 property list. PW3 Additional Sub Inspector of Police, Neyyattinkara, conducted the investigation.

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On the side of the prosecution, PWs.1 to 6 were examined, Exts.P1 to P4 and X1 were marked. MOs.1 to 3 series were identified. No defence evidence was adduced.

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The court below found the appellant guilty of the offence punishable under Section 55(i) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The court below has acquitted A2 and A3 in the case.

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This is a case, wherein, the Detecting Officer was not available for examination. At the same time, two Police Constables, who were present along with CW7, were examined to prove the occurrence. PWs.4 and 5 were the

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Crl.A. No.290 of 2009

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said Police Constables. According to PW5, the appellant could be arrested, and the other accused ran away from the spot. The quantity of 5 litres of arrack contained in a can and two other cans of 10 litres capacity each containing 20 more litres of arrack could be seized. He identified the signature of CW7 in Ext.P2 property list as well as in Ext.P3 FIR.

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In cross examination, PW4 has admitted that samples were drawn from the contraband at the spot and samples were collected from all the cans. PW5 is the other Police Constable, who has also deposed that arrack was seized from the appellant and that the samples were drawn from the contraband at the spot.

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According to PW6 property clerk of the Judicial First Class Magistrate's Court-I, Neyyattinkara, the contraband items were produced before court on 06.08.2001, from which, samples of 180 ml. each were drawn. She has proved Ext.X1 extract of the property register. Ext.X1

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Crl.A. No.290 of 2009

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shows that the said contraband articles were produced before court 06.08.2001 and the same were returned for safe custody until further orders, to the Police. It further shows that the sample was handed over to the Police on 22.10.2001. PW6 has not stated as to the date on which the samples were drawn. Ext.X1 makes it clear that the samples drawn from the contraband were handed over to the Police for taking it to the laboratory on 22.10.2001. Ext.P2 as well as Ext.X1 reveal that the contraband produced on 06.08.2001 were returned to the Police for safe custody until further orders. There is no evidence to show as to who was the person in custody of the contraband till the samples were drawn by PW6. There is no evidence to show as to when the contraband was re-submitted for enabling PW6 to draw samples.

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Apart from all the above, the evidence of PWs.4 and 5 show that the samples were drawn from the contraband at the spot itself. CW7 was not available for examination.

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Crl.A. No.290 of 2009

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From all these, it is evident that the evidence before the court below clearly raises serious doubts in the prosecution case. Ext.P4 certificate of chemical analysis cannot be relied on and the same cannot be considered as certificate of chemical analysis in respect of the samples allegedly drawn from the contraband. From all these, the only conclusion that can be arrived at is that 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.290 of 2009

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Raju @ Koonan Raju v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raju @ Koonan Raju 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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