Allowed

Tomy v. State of Kerala

Kerala HC28 Oct 2016CRL.A/462/2009

Case brief

AI extract

What is this about?

This is a criminal appeal against conviction under Section 55(a) of the Abkari Act. The High Court set aside the conviction and acquitted the appellant, holding that unexplained delay in producing the sample and lack of corroboration by police witnesses raised serious doubts. The court found insufficient evidence for conviction.

What did the court decide?

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

Tomy 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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FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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CRL.A.No. 462 of 2009 ( )

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SC 1310/2004 of ADDITIONAL SESSIONS COURT (ADHOC-II), THALASSERY DATED 09-02-2009

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APPELLANT/ACCUSED:

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TOMY, S/O.CHACKO, AGED 44 YEARS, CHENNAMKULATH HOUSE, ARALAM AMSOM, CHATHIRUR.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENT/COMPLAINANT:

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

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

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/31/10/16

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CRL.A.No. 462 of 2009 ( )

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APPENDIX

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APPELLANT’S ANNEXURES:

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A-1 COPY OF THE JUDGMENT DATED 09.02.2009 IN S.C.NO.1310/2004 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-II), THALASSERY.

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RESPONDENT’S ANNEXURES:

NIL

// True Copy //

P.A. To Judge

DSV/31/10/16

B. KEMAL PASHA, J

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Crl.Appeal No.462 of 2009 ================

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Dated this the 28^th day of October, 2016

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The appellant is the accused in Sessions Case No.1310 of 2004 of the Additional Sessions Court (Adhoc-II), Thalassery, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for three 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 24.10.2003,

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at 2.05 p.m., the accused was found in possession of 21 packets, each containing 100 ml of Karnataka

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Crl.A.462/09 2

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made arrack at a place called Chathirur in Aralam amsom, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Sub

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Inspector of Police, Aralam Police Station. He placed the accused under arrest through Exhibit-P1 arrest memo. The contraband was seized through Exhibit-P3 mahazar. The arrack contained in two packets were taken as sample. On reaching the Police Station with the accused, the contraband, the sample and the records, he registered the crime through Exhibit-P4 First Information Report. The sample was produced before court through Exhibit-P5 property list. The balance contraband was sent to the Assistant Excise Commissioner, Kannur, for disposal, after preparing the inventory. Forwarding note was furnished, the copy of which is Exhibit-P6. On getting Exhibit-P7 certificate of chemical analysis, which shows that the

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Crl.A.462/09

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sample contained 30.08% by volume of ethyl alcohol, PW1 filed the Final Report.

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On the side of the prosecution, PW1 to PW5 were examined and Exhibits-P1 to P9 were marked. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 55(a) 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 Senior Public Prosecutor.

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According to the learned counsel for the appellant, there is no sufficient evidence in the case to convict the accused for the offence under Section 55 (a) of the Abkari Act, and therefore, the conviction and sentence passed by the court below are liable to be set aside. This is a case wherein the only evidence available for the prosecution regarding the incident is the evidence of PW1 alone. PW2 and PW3, who are

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Crl.A.462/09

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independent witnesses cited by the prosecution, have turned hostile to the prosecution and did not support the prosecution case. Therefore, in a case like this, when the independent witnesses have turned hostile to the prosecution, the prosecution ought to have examined at least one more Police Personnel, who had allegedly accompanied PW1, as a witness, to corroborate the versions of PW1. The versions of PW1 cannot be taken as gospel truth.

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Apart from the above, it has come out that even through the contraband was allegedly seized on 24.10.2003, and the sample was drawn on the same day at the spot, the endorsement in Exhibit-P5 clearly shows that the sample reached the court on 01.11.2003 only. No explanation has been forthcoming from PW1 as to how the said delay has been occasioned in the production of sample before court. When the said delay has not been explained, it

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Crl.A.462/09

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is not at all safe to rely on the contents of Exhibit-P7 certificate of chemical analysis. Apart from the above, there is absolutely nothing to show that the contraband involved in this case is arrack. Exhibit-P7 shows that the sample contained ethyl alcohol. PW1 has no case that he had ascertained the contents of the packets as arrack by smelling and tasting it. If it is proved to be Karnataka made arrack, it could safely be concluded that the same was seized during an illegal import or an illegal transport, when the same was seized in Kerala. Whatever it is, this Court is satisfied that the unexplained delay in the production of the sample before court and the lack of corroboration of the evidence of PW1 in the case, clearly raise serious doubts in the prosecution case. Therefore, 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

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Crl.A.462/09

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

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/28/10/16

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// True Copy //

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P.A. To Judge

Tomy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Tomy v. State of Kerala

Case brief

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What did the court decide?

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