Appellant convicted under Section 8(2) of the Abkari Act for transporting arrack. High Court allowed appeal set aside conviction and appointed sentence due to unexplained delay in producing seized sample for chemical analysis rendering certificate unreliable for conviction.
Conviction and sentence set aside; appellant acquitted.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938
CRL.A.No. 601 of 2009 (A)
-------------------------SC.NO. 1281/2006 OF ADDL.DISTRICT & SESSIONS COURT FAST TRACK (ADHOC)-II, KOZHIKODE
APPELLANT/ACCUSED:
GOPALAN, PADINJAREKANDI, MANNITTAMMAKKIL, ELETTIL AMSOM-DESOM, KOZHIKODE.
BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
B.KEMAL PASHA, J.
================
Crl.A. No.601 of 2009
======================= Dated this the 3rd day of August, 2016
JUDGMENT
Appellant is the accused in S.C.No.1281/2006 of the Additional Sessions Court (Adhoc-II), Kozhikode, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/-, in default to undergo₹ rigorous imprisonment for six more months.
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through Ext.P1 mahazar. Two samples of 375 ml. each were drawn. He produced the properties before court on 08.02.2005 and filed the forwarding note, the copy of which is Ext.P4. PW4 Sub Inspector of Police, Mukkam conducted the first part of the investigation and he prepared Ext.P6 scene mahazar. Thereafter, the investigation was taken over by PW5 Sub Inspector of Police, Koduvally, who filed the final report on getting Ext.P5 certificate of chemical analysis.
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that, admittedly, the sample was produced before court by PW1 on 08.02.2005 and there is no explanation regarding the delay in producing the sample before the court below. In such case, according to the learned counsel for the appellant, Ext.P5 could not have been relied on by the court below as one pertains to the sample allegedly drawn from the contraband involved in this case.
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property for the period from 04.02.2005 to 08.02.2005. When there is such an unexplained delay for the production of the sample before court, as rightly pointed out by the learned counsel for the appellant, Ext.P5 cannot be relied on as the certificate of chemical analysis in respect of the sample allegedly drawn from the contraband involved in this case. It is not at all safe to convict the accused based on Ext.P5, in view of the aforesaid delay. Matters being so, the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Crl.Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.
Sd/- B.KEMAL PASHA, JUDGE
stu
//True copy//
P.A to Judge.
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1 issue framed by the court
Whether the conviction and sentence are sustainable when there is an unexplained delay in producing the sample before the court for chemical analysis.
1 provisions across 1 enactments
GOPALAN
STATE OF KERALA
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
