Allowed

Edathil Ashokan v. State of Kerala

Kerala HC9 Aug 2016CRL.A/453/2009

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal, setting aside the conviction of accused Edathil Ashokan for illegally selling Indian Made Foreign Liquor. The court held that unexplained delay in producing seized samples and the chemical analysis certificate rendered the prosecution evidence unsafe.

What did the court decide?

The criminal appeal is allowed; the conviction and sentence are set aside; the appellant is acquitted.

Edathil Ashokan Vs State of Kerala — Criminal Trial and Appeal | 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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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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CRL.A.No. 453 of 2009 ( )

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-------------------------SC.NO. 943/2005 OF ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY

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APPELLANT/PETITIONER:

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EDATHIL ASHOKAN, S/O. KRISHNAN, PERINGOLAKKANDI HOUSE, PADUVILAYI AMSOM, KALLAYI.

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BY ADV. SRI.V.BINOY RAM

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RESPONDENT/RESPONDENT:

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STATE OF KERALA, REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, 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. 453 of 2009

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............................................................... Dated this the 9^th 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.943/2005 of the Additional Sessions Court(Adhoc-II), Thalassery, who stands convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹1,00,000/-, in default to undergo rigorous imprisonment for one more year.

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The prosecution case is that on 13.07.2004 at 7.30 p.m., the accused was found engaged in selling Indian

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Made Foreign Liquor at a public place, in contravention of the provisions of the Abkari Act. The offence was detected by PW4, Probationary Sub Inspector of Police, Kuthuparamba while on patrol duty. On seeing the police party, the customer of the accused ran away and escaped. PW4 placed the accused under arrest through Ext.P2 arrest memo. He seized the contraband through Ext.P1 mahazar.

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Crl. Appeal No. 453 of 2009

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-: 2 :-

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Three samples of 100 ml each were drawn. He registered Ext.P5 FIR. He further prepared Ext.P6 property list and produced the contraband and the samples before court. PW5 Sub Inspector of Police, Kuthuparamba conducted the investigation and filed the final report on getting Ext.P8 certificate of chemical analysis.

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On the side of prosecution, PWs.1 to 5 were examined, Exts.P1 to P8 were marked and MOs.1 to 5 series were identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 55(i) 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

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that there is inordinate delay in the production of the samples before court and the delay has not been explained in any manner by the prosecution and therefore, the court

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Crl. Appeal No. 453 of 2009

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-: 3 :-

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below ought not to have relied on Ext.P8 as the certificate of chemical analysis in respect of the sample allegedly drawn from the contraband involved in this case.

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PW4 and party could seize two bottles each containing 750 ml of IMFL and some quantity of liquor in another bottle of 750 ml capacity which was also in the hands of the accused. Three samples were drawn. An amount of ₹95/-, being the sales proceeds, was also seized from the possession of the accused. According to PW4, PW1 police constable was also present along with PW4, and the person to whom the accused had allegedly supplying liquor from the bottle to the glass tumbler, ran away from the spot on seeing the police party. Either PW4 or PW1 could not locate the said person, who had allegedly ran away from the spot. His identity has not been revealed. The said person has not been arraigned as an accused or cited as witness.

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The specific allegation against the appellant is

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Crl. Appeal No. 453 of 2009

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-: 4 :-

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that he was engaged in the sale of IMFL. Therefore, there must be evidence to show that he was actually engaged in the sale of IMFL, in contravention of the provisions of the Abkari Act. When no evidence has been collected regarding such sales, it cannot be said that the accused has committed the offence of selling IMFL, in contravention of the provisions of the Abkari Act.

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This is a case wherein, admittedly the liquor in question is IMFL purchased from the Kerala State Beverages Corporation. The quantity allegedly seized from the possession of the accused is permissible quantity which an individual could possess. There is delay in this case in the production of the sample before the court below. Even though the contraband was allegedly seized on 13.07.2004 and the samples were drawn at the spot, the samples and the contraband were produced before court on 16.07.2004 only, as is evident from Ext.P6 property list. There is no explanation from the part of PW4 in not producing the

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Crl. Appeal No. 453 of 2009 -: 5 :-

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samples before court immediately after the seizure. He could have produced the samples at least on the next day. Here, for reasons best known to him PW4 has chosen to produce the properties on 16.07.2004 only. There is no evidence adduced by the prosecution to show as to who was the custodian of the said properties including the sample till 16.07.2004. In the light of the unexplained delay in the production of the sample before court, it is not safe to consider Ext.P8 as the certificate of chemical analysis in respect of the samples allegedly drawn from the contraband. Matters being so, 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.

Edathil Ashokan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Edathil Ashokan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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