Allowed

Sree Renjan v. State of Kerala

Kerala HC23 Aug 2016CRL.A/324/2009

Case brief

AI extract

What is this about?

The Court set aside the conviction and sentence of the appellant who was found transporting liquor under the Abkari Act. The appeal was allowed because the certificate of chemical analysis relied upon for identification was unsafe due to lack of evidence on sample collection procedures and custodianship. The appellant stands acquitted.

What did the court decide?

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

Sree Renjan 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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TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938

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CRL.A.No. 324 of 2009 (A)

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-------------------------SC.NO. 480/2002 OF ADDL.SESSIONS COURT, FAST TRACK (ADHOC) NO-IV, THIRUVANANTHAPURAM

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APPELLANT/ACCUSED:

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SREE RENJAN, S/O.KUTTAN, MAVILA VEEDU, PULINKUDI, KOTTUKAL DESOM, KOTTUKAL VILLAGE.

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BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL

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RESPONDENT/COMPLAINANT:

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

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BY SR PUBLIC PROSECUTOR SRI.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 324 of 2009

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............................................................... Dated this the 23^rd day of August, 2016

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J U D G M E N T

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The appellant is the accused in S.C.No.480/02 of the Additional Sessions Court, Adhoc(IV) 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 rigorous imprisonment for six more months.

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The prosecution case is that on 05.11.1999 at 8.30 a.m. the accused was found transporting 10 litres of arrack in a 10 litres capacity can through Pulinkudi junction –Sooryasamudra Hotel road, Kottukal Village, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW4 Preventive Officer of Excise, Neyyattinkara. He seized the contraband through Ext.P1 mahazar and placed the accused under

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Crl. Appeal No. 324 of 2009

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-: 2 :-

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arrest through Ext.P2 arrest memo. He produced the accused, the properties and the mahazar before PW5 Excise Inspector, Neyyattinkara. PW5 registered Ext.P4 crime and occurrence report. He produced the accused, the properties and the records before court. Ext.P5 is the property list. He furnished the forwarding note, the copy of which is Ext.P6. On getting Ext.P6 certificate of chemical analysis, he filed the complaint.

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On the side of the prosecution, PWs.1 to 6 were examined, Exts.P1 to P7 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 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 cannot be relied on since the same cannot be

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Crl. Appeal No. 324 of 2009

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-: 3 :-

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considered as the certificate of chemical analysis in respect of the samples drawn from the contraband.

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PW4 has no case that he has drawn any sample

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from the contraband. In fact, no sample was drawn from the contraband at the spot in the presence of the accused. On the contrary, he produced the accused, the properties and the mahazar before PW5 Excise Inspector. PW5 has also not cared to draw the sample in the presence of the accused.

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Ext.P5 is the property list, which shows that the property was produced before the Judicial First Class Magistrate's Court-II, Neyyattinkara on 05.11.1999. It seems that the learned Magistrate had ordered the return of properties to the Excise personnel with a direction to keep the properties at the Excise Office, Neyyattinkara. Ext.P7 is the extract of the property register which shows that the sample was handed over to the Excise personnel on 23.11.1999. According to PW6, the property clerk of the

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Crl. Appeal No. 324 of 2009 -: 4 :-

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Judicial First Class Magistrate's Court-II, Neyyattinkara, sample was drawn from the contraband as per the orders of the learned Magistrate. At the same time, any of the records

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do not reveal any such order passed by the learned Magistrate. The contraband was ordered to be returned for keeping it at the Excise Office, Neyyattinkara, on the date of production itself. There is no evidence to show as to when the property was again produced before court. There is also no evidence to show as to the date on which the sample was drawn. Evidently, it seems that the sample was drawn on 23.11.1999 through Ext.P7. If the property was again produced or ordered to be produced on 23.11.1999 for drawing the sample, the prosecution ought to have adduced evidence to show as to who was the custodian of the property till then. PW4 has not explained as to why the sample was not drawn from the contraband at the spot, in the presence of the accused. Matters being so, it is not at all safe to rely on Ext.P6 and to consider it as the certificate

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Crl. Appeal No. 324 of 2009

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-: 5 :-

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of chemical analysis in respect of the sample drawn from the contraband. Therefore, the conviction and sentence passed by the court below are liable to be set aside.

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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.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Sree Renjan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sree Renjan 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

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