Allowed

Kuruppaswamy v. State of Kerala

Kerala HC11 Aug 2016CRL.A/577/2009

Case brief

AI extract

What is this about?

This criminal appeal against conviction under Section 55(i) of the Abkari Act was allowed due to lack of corroborative evidence from independent witnesses, hostility of prosecution witnesses, and unexplained delay in producing seized samples, leading to the acquittal of the appellant.

What did the court decide?

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

Kuruppaswamy Vs State of Kerala — Property and Title | 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 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938

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CRL.A.No. 577 of 2009 ( )

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AGAINST THE JUDGMENT IN SC. NO.33/2008 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR NDPS ACT CASES), THODUPUZHA DATED 24/02/2009.

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APPELLANT/ACCUSED:

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KURUPPASWAMY, S/O. SANKARAN, 8 MURI LAYAM, M G P XIII/138, CHOCKANAD ESTATE, K.D.H. VILLAGE, DEVIKULAM TALUK.

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BY ADVS.SRI.P.VIJAYA BHANU, SRI.THOMAS J.ANAKKALLUNKAL.

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.S. HYMA.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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B. KEMAL PASHA, J.

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Crl. Appeal No.577 of 2009

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Dated this the 11^th day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.33/2008 of the

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Additional Sessions Court/ Special Court for NDPS Act Cases, Thodupuzha, who stands convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹1 lakh, in default to undergo rigorous imprisonment for six months.

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The prosecution case is that on 09.03.2007, the

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accused was found engaged in selling Indian Made Foreign Liquor on the road from Chokkanadu to Cigarette point near

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Kodimaram bridge at 6.30 p.m., in contravention of the provisions of the Abkari Act.

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Crl.A.577/2009

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: 2 :

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The offence was detected by PW3, Excise

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Inspector, Devikulam. It is alleged that on seeing the excise party, the persons, who were allegedly present there along with the accused, ran away from the spot and PW3 could arrest the accused, who was holding a bottle and a glass tumbler. The bottle in the hands of the accused contained 300 ml. of IMFL, and there was another bottle of 750 ml. containing IMFL. An amount of ₹160/- being the sale proceeds was seized from the accused. Samples of 200 ml. each were drawn. The contraband was seized through Ext.P1 mahazar. PW3 registered Crime No.6/2007 through Ext.P6 crime and occurrence report. He produced the properties before court through Ext.P7 property list. Forwarding note was filed, the copy of which is Ext.P8. He conducted the investigation and filed the complaint on getting Ext.P9 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 3 were examined, Exts.P1 to P9 were marked and MO1 series to

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Crl.A.577/2009

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: 3 :

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MO5 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 learned counsel for the appellant and learned Public Prosecutor.

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Learned counsel for the appellant has argued that there is no evidence to show that the accused had sold IMFL. It has also been pointed out that the conviction entered by the court below is based on the solitary evidence of PW3 and there is no evident corroboration to the evidence of PW3. It has also been pointed out that the properties including the samples were produced before court on 13.03.2007 only and, therefore, there was inordinate delay in the production of the samples before court.

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This is a case wherein PW1 and PW2, who were cited as independent witnesses by the prosecution, have

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Crl.A.577/2009

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: 4 :

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turned hostile to the prosecution. It is true that they have admitted their signatures in Ext.P1 and the slips affixed on the material objects. At the same time, they have deposed that their signatures were not obtained at the spot and they had never witnessed the seizure of any contraband from the accused. In this particular case, the prosecution is relying on the evidence of PW3 alone for proving the seizure, registration of crime, the investigation and also the complaint. In such case, especially when there were other excise personnel allegedly present along with PW3, the prosecution ought to have examined at least one among them for getting corroborative piece of evidence.

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Apart from the above, it seems that even though the contraband was seized on 09.03.2007 and the samples were drawn, for reasons best known to PW3 alone, he had opted to keep the same in his possession or somewhere else till 13.03.2007. The samples were produced before court on 13.03.2007 only as is evident from Ext.P7 property

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Crl.A.577/2009

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: 5 :

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list. The delay in the production of the samples before court has not been explained in any manner. In such case, the manipulation in the samples cannot be ruled out. Matters being so, it is not at all safe to convict the accused by relying on Ext.P9 certificate of chemical analysis. Therefore, 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 as against the appellant are set aside. The appellant is acquitted.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/12/08

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// True Copy //

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PA to Judge

Kuruppaswamy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kuruppaswamy v. State of Kerala

Case brief

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