Allowed

Joy v. State of Kerala

Kerala HC21 Oct 2016CRL.A/452/2009

Case brief

AI extract

What is this about?

Crl.A.No.452 of 2009 was heard by B. Kemal Pasha J. On appeal, the Kerala High Court set aside the conviction and sentence of two appellants under the Abkari Act for transporting arrack. The High Court acquitted them, holding there was insufficient evidence regarding the vehicle's ownership, the appellants' identity, the source of the contraband, and the delay in presenting the seized sample.

What did the court decide?

The conviction and sentence passed by the court below are set aside. The appellants are acquitted. Any amount deposited as fine is to be returned.

Joy Vs State of Kerala — Bail and Remand | 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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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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CRL.A.No. 452 of 2009 ( )

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SC 167/2006 of IV ADDITIONAL SESSIONS COURT (ADHOC), THODUPUZHA

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CP 162/2005 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, NEDUMKANDOM

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CRIME NO.172/2004 OF SANTHANPARA POLICE STATION

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APPELLANTS/ACCUSED 1 & 3:

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1. JOY, S/O.VARGHESE, PUTHENPURACKAL HOUSE, EZHARA ACRE BHAGOM, CHEMMANNUR KARA, KANTHIPPARA VILLAGE.

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2. REJIMON, S/O.SREEDHARAN, PUTHUSSERIL, MANGATHOTTI KARA, KANTHIPPARA VILLAGE.

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BY ADVS.SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/31/10/16

B. KEMAL PASHA, J

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Crl.Appeal No.452 of 2009

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

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Dated this the 21^st day of October, 2016

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J U D G M E N T

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The appellants are A1 and A3 in Sessions Case

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No.167 of 2006 of the IV Additional Sessions Court (Adhoc-I), Thodupuzha, who stand convicted under Section 8(2) of the Abkari Act and each of whom sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for three months.

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On 14.08.2004, PW5 and party were

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engaged in patrol duty, they could see Jeep bearing registration No.KL-I-6079, allegedly driven by A1, was coming from the opposite direction through the

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Crl.A.452/09 2

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Chemmannar - Venkalappara Road. When PW5 Sub Inspector of Police, Santhanpara gave signal to the Jeep to stop, it sped away by disregarding the signal. The Police Jeep, by which PW5 was travelling, chased the other Jeep. It is alleged that from the Jeep, allegedly driven by A1, two black cans were thrown to the left side as well as the right side of the road from the Jeep. Those cans contained arrack. The cans became broken and the arrack drained out.

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The Jeep, allegedly driven by A1, stopped in front of the house of PW1 and the three persons, who were sitting on the front seat, got out and ran away. The inspection of the Jeep by PW5 revealed the presence of a 5 litres capacity can, which contained 2½ litres of arrack. A sample of 180 ml was drawn.

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PW5 registered Crime No.172 of 2004 of the Santhanpara Police Station, for the offences punishable under Section 55(a) and 8(1) and (2) of the

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Crl.A.452/09

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Abkari Act. A crime was registered through Exhibit-P2 against one Joy @ Thadiyan Joy as A1 and two other identifiable persons. He produced the contraband and the sample before court through Exhibit-P3 property list. Forwarding note was furnished, the copy of which is Exhibit-P4. He filed Exhibit-P5 report showing the name and address the accused. The accused had allegedly appeared at the Police Station on 17.08.2004 and consequently, they were placed under arrest through Exhibit-P6 series arrest memos. PW7 Sub Inspector of Police, Santhanpara conducted the investigation and filed the Final Report, on getting Exhibit-P7 certificate of chemical analysis.

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On the side of the prosecution, PW1 to PW10 were examined, Exhibits-P1 to P8 were marked and MO1 series to MO3 were identified. On the side of the accused, Exhibits D1 and D2 were marked. No further defence evidence was adduced. The court

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below acquitted A2 and found the appellants, who are A1 and A3, guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid.

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Heard the learned counsel for the appellants and the learned Senior Public Prosecutor.

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The learned counsel for the appellants has argued that there is no sufficient evidence for the identification of these appellants and the appellants were arraigned as accused in the case solely due to mistaken identity. It is also argued that there is no sufficient evidence in the case to conclude that the said Jeep belongs to A1. It is also argued that there is nothing to show that any of these appellants had ever possessed or kept in their possession any quantity of contraband.

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Apart from PW5 and PW6, all the other

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occurrence witnesses cited by the prosecution had

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turned hostile to the prosecution and did not support the prosecution case. Even though PW5 has got a case that only three person were in the Jeep, even according to the prosecution, PW3 was also travelling by the Jeep as a passenger. Therefore, the prosecution has got a case that over and above A1 to A3, other persons were also present in the Jeep. From the evidence of PW5 and PW6, it has come out that they had no prior acquaintance with the appellants. The identification of these appellants by PW5 and PW6 cannot be believed. They had no occasion to see these appellants out side the Jeep. Their allegation is that these persons were coming by the Jeep and disregarding the signal given by PW5, they sped away by the Jeep. They chased the Jeep and thereafter, the Jeep was stopped in front of the house of PW1 and the appellants along with A2 ran away from the Jeep. From the versions of PW5 and PW6, it is evident that

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they did not get an opportunity to identify these appellants.

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Apart from the above, there is no sufficient evidence to conclude that two black cans allegedly thrown away from the Jeep, towards the left side of the Jeep as well as the right side of the Jeep, were thrown away by any of these appellants. Other persons were also present in the Jeep. Even according to PW5, he could not say as to who threw away those two black cans from the Jeep. Regarding the presence of a 5 litres capacity can, which contained 2 ½ litres of arrack in the Jeep, it cannot be said that the same was kept by any of these appellants. Even according to PW5 and PW6, there were only three persons in the front seat of the Jeep. According to the prosecution, the said three persons were the three accused. The can containing 2½ litres of arrack was allegedly seized from the rear side of the Jeep. In such case, it cannot

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be said that the same was placed by the appellants in the Jeep, especially when the other persons were occupying the rear seat in the Jeep.

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Apart from all the above, Exhibit-P5 clearly shows that the contraband, sample and the other material objects were produced before court on 17.08.2004 only. It has to be taken note of that the accused had voluntarily appeared at the Police Station on 17.08.2004. Had there been a seizure as narrated

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in Exhibit-P1 mahazar, PW5 could have produced those properties before court on the same day itself or on the subsequent day. PW5 ought not to have waited for the surrender of the accused for producing the sample before court. The delay in the production of the contraband and the sample before court remains to be unexplained. Matters being so, Exhibit-P7 also cannot be relied on.

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Regarding the Jeep, according to PW9, she

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was the registered owner and she had sold the Jeep to a person named Sasi. PW8 is one Varghese. According to him, he purchased the Jeep from somebody at Adimaly through a broker. PW8 has identified ExhibitP8. Exhibit-P8 is the photocopy of a sale note in respect of the Jeep. When he was confronted with Exhibit-D1 summons, he clearly admitted that his signature in Exhibit-D1 has no similarity with the signature in Exhibit-P8 photocopy. Therefore, there is no sufficient evidence to prove that the Jeep was purchased by A1. From all the above, this Court is satisfied that there is no sufficient evidence to find the appellants guilty of the offence under Section 8(2) of the Abkari Act and 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. The conviction and sentence passed by the court below are set aside. The appellants are acquitted.

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The amount, if any deposited by the appellants as part of the fine amount, when the sentence was suspended, shall be returned to the appellants.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/21/10/16

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// True Copy //

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P.A. To Judge

Joy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joy v. State of Kerala

Case brief

What is this about?

What did the court decide?

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