Allowed

Moothoran Chathan v. State of Kerala

Kerala HC1 Sept 2016CRL.A/340/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal regarding the fine imposed for possession of arrack. Conviction was rendered unsustainable due to inordinate delay in producing seized samples, casting doubt on their authenticity. Imprisonment sentences abated due to the death of the appellant.

What did the court decide?

The sentence of fine is set aside. Conviction and imprisonment sentences rendered unsustainable; imprisonment sentence abated.

Moothoran Chathan 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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THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938

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CRL.A.No. 340 of 2009 ( )

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SC 500/2006 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE

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APPELLANT/ACCUSED:

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MOOTHORAN CHATHAN,

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S/O. CHATHAN, KALLUVETTUKANDY HOUSE, UNNIKULAM AMSOM, RAJAGIRI.

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BY ADVS.SRI.P.SHRIHARI

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SMT.P.VANI

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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 PUBLIC PROSECUTOR SRI.C.S.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/5/9/16

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CRL.A.No. 340 of 2009

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APPENDIX

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APPELLANT’S ANNEXURES:

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ANX-1 COPY OF THE ORDER BY FAST TRACK COURT KOZHIKODE DATED 03.03.2008.

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RESPONDENT’S ANNEXURES:

NIL

// True Copy //

P.A. To Judge

DSV/5/9/16

B. KEMAL PASHA, J

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

Crl.Appeal No.340 of 2009

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================= Dated this the 1^st day of September, 2016

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J U D G M E N T

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The appellant is the accused in Sessions Case

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No.500 of 2006 of the Additional Sessions Court (Adhoc-II), Kozhikode, who stands convicted under Section 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default to undergo rigorous imprisonment for six more months.

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The prosecution case is that on 18.12.2003

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at 12.10 p.m., the accused was found keeping 1½ litres of arrack in a can in his possession at Rajagiri -

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Crl.A.No.340 of 2009

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Cheerumukku Road in Unnikulam Village, Koyilandy Taluk, in contravention of the provisions of the Abkari Act.

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The crime was detected by PW-1, Sub

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Inspector of Police, Balussery. He seized the contraband through Exhibit-P1 mahazar and placed the accused under arrest through Exhibit-P2 arrest memo. Two samples of 375 ml each were drawn. PW4, Sub Inspector of Police, Balussery, completed the investigation and filed the Final Report. Exhibit-P5 is the certificate of chemical analysis, which shows that the samples contained 24.81% and 25.21% by volume of Ethyl Alcohol. The court below found the accused guilty of the offence punishable under Section 8 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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When this appeal came up for hearing,

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there was no representation for the appellant.

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Crl.A.No.340 of 2009 3

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Bailable warrant was issued to the appellant and consequently, a report was filed by the Sub Inspector of Police, Balussery along with the copy of the death certificate of the appellant, which shows that the appellant died on 25.09.2010. Any of the legal representatives have not come forward to join the appeal. The appeal, so far as it relates to the substantive sentence of imprisonment and also default sentence of imprisonment, has become abated. This appeal, so far as it relates to the fine, shall not abate.

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This Court has considered the evidence of

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the prosecution before the court below. According to PW-1, even though the contraband was seized and samples were drawn on 18.12.2003, he kept it in his safe custody and produced it before court on 30.12.2003 only. No explanation has been given as to why he had not produced the contraband and samples before court, at least on the next day itself. There is

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Crl.A.No.340 of 2009 4

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inordinate delay in the production of the samples before court.

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Apart from that Exhibit-P4 forwarding note along with the requisition filed by the Sub Inspector of

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Police, Balussery, show that the same along with samples were produced before court on 03.04.2004 only. The seal of the court on the requisition clearly shows the date as 03.04.2004. Matters being so, any further discussion is not required to conclude that the chances of tampering with the samples cannot be ruled out. Therefore, Exhibit-P5 certificate of chemical analysis cannot be relied on. Matters being so, the conviction and sentence passed by the court below are not legally sustainable.

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In the result, this appeal, so far as it relates to the substantive sentence of imprisonment and the default sentence of imprisonment, has become abated. This appeal, so far as it relates to the

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Crl.A.No.340 of 2009

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sentence of fine, is allowed and the said sentence of fine is set aside.

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Sd/- B. KEMAL PASHA, JUDGE.

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DSV/1/9/16

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// True Copy //

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P.A. To Judge

Moothoran Chathan v. State of Kerala

Case brief

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Moothoran Chathan v. State of Kerala

Case brief

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