Allowed

Punneri Kunkan v. State of Kerala

Kerala HC25 Oct 2016CRL.A/465/2009

Case brief

AI extract

What is this about?

In an appeal by a convicted accused, the High Court of Kerala set aside the conviction and sentence under Section 8(2) of the Abkari Act. The court held that inordinate delay in producing seized contraband and the absence of corroborative evidence for the search invalidly tainted the certificate of chemical analysis relied upon for conviction.

What did the court decide?

The conviction and sentence of the appellant were set aside and the appellant stood acquitted.

Punneri Kunkan 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 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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CRL.A.No. 465 of 2009

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SC 232/2004 OF ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY DATED 29-01-2009

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APPELLANT/ACCUSED:

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PUNNERI KUNKAN, S/O. CHENNAPPOIL CHANDU, PANNIYOD, MANANTHERI AMSOM, POOZHIYOD, THALASSERY TALUK.

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BY ADVS.SRI.K.S.PRAVEEN SMT.P.SHEEBA

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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 GOVERNMENT PLEADER SRI ALEX M THOMBARA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 465 of 2009

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............................................................... Dated this the 25^th day of October, 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.232/04 of the Additional Sessions Court(Adhoc-III), Thalassery, who stands convicted under Section 8(2) of the Abkari Act, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for one more month.

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The prosecution case is that on 19.11.2012 at 2.30 p.m., the accused was found keeping 5 litres of arrack in his possession at his house in Chittariparamba Panchayat, in contravention of the provisions of the Abkari Act.

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The offence was detected by Sub Inspector of Police, Kannavam Police Station. He seized the contraband through Ext.P4 search list, and a sample of 375 ml was

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Crl. Appeal No. 465 of 2009

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drawn. He placed the accused under arrest through Ext.P2 arrest memo. On reaching the Police Station with the accused, the contraband, the sample, and the records, he registered Crime No.371/2002 under Section 55(a) of the Abkari Act through Ext.P5 FIR. He produced the properties before court through Ext.P6 property list. He furnished the forwarding note, the copy of which is Ext.P8. He filed the final report in the case on getting Ext.P9 certificate of chemical analysis, which shows that the sample contained 34.96% by volume of ethyl alcohol.

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On the side of the prosecution, PWs.1 to 3 were examined and Exts.P1 to P11 were marked. 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 Senior Public Prosecutor.

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Crl. Appeal No. 465 of 2009

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The learned counsel for the appellant has argued

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that there is no sufficient evidence in this case to attract an offence under Section 8(2) of the Abkari Act. It has been further argued that there is inordinate delay in the production of the contraband and sample before court and therefore, the court below ought not to have considered Ext.P9 as the certificate of chemical analysis in respect of the sample allegedly drawn from the contraband involved in this case. It has also been argued that there is no sufficient proof that the sample involved in this case was drawn from the contraband involved in this case and therefore, the court below ought not to have convicted the appellant under Section 8(2) of the Abkari Act. Another argument is that the contraband was allegedly seized from the house belongs to the accused and that itself does not show that the accused had possessed the contraband or kept the contraband, especially when other members of his family were also residing there.

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Crl. Appeal No. 465 of 2009

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To prove the search and seizure, the prosecution has examined PW1 alone who allegedly conducted the search and seizure. It seems that the prosecution has decided not to examine any other witness to corroborate the evidence of PW1 simply because of the fact that PW1 happened to be the Sub Inspector of Police. The prosecution ought not to have taken such a stand, especially when other police officials were also allegedly present along with PW1. The prosecution ought to have examined at least one among them to adduce corroborative piece of evidence, to corroborate the version of PW1.

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Apart from the above, it seems that there was inordinate delay in the production of the contraband and sample before court. The endorsement of the learned Magistrate in Ext.P6 property list clearly shows that the properties were produced before court on 02.12.2003, even though the contraband was allegedly seized on 19.11.2002. The explanation offered by PW1 that due to the pressure of

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work and law and order duty, the delay had occasioned, cannot be treated as a proper explanation for the said inordinate delay. Matters being so, as rightly pointed out by the learned counsel for the appellant, Ext.P9 cannot be treated as the certificate of chemical analysis in respect of the sample allegedly drawn from the contraband.

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Regarding the other argument forwarded by the learned counsel for the appellant that the sample is not proved to be arrack, the said argument is devoid of merits. PW1 is an experienced Police Officer who could ascertain the contraband as arrack, by smelling it and tasting it, and coupled with it, if there is proper certificate of chemical analysis showing the presence of ethyl alcohol in the sample, the same is sufficient to conclude that the contraband is arrack. Here, in this particular case, Ext.P9 cannot be relied on.

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From all the above, it has come out that the conviction and sentence passed by the court below are not

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legally sustainable and the same are liable to be set aside, and I do so.

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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.

Punneri Kunkan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Punneri Kunkan v. State of Kerala

Case brief

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What did the court decide?

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