Allowed

Sathyan @ Kannan v. State of Kerala

Kerala HC8 Aug 2016CRL.A/604/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appellant's criminal appeal against conviction and sentence under Section 8(2) of the Abkari Act for smuggling arrack. The court held the conviction liable to be set aside due to irregularities in the seizure and analysis process, specifically the lack of an on-spot sample and unverified chemical analysis certificate.

What did the court decide?

The conviction and sentence passed by the court below against the appellant are set aside; the appellant stands acquitted.

Sathyan @ Kannan Vs State of Kerala — Narcotics (NDPS) | 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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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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CRL.A.No. 604 of 2009 (A)

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-------------------------SC 1207/2005 of ADDITIONAL SESSIONS COURT FAST TRACK III, THIRUVANANTHAPURAM

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APPELLANT(S)/ACCUSED NO.1:

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SATHYAN @ KANNAN PORIYANAMCODE COLONY, KURUTHAMKODE, RAMAPURAM, VENPAKAL, ATHIYANNOOR, NEYYATTINKARA TALUK.

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BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, THIRUVANANTHAPURAM.

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BY PUBLIC PROSECUTOR SMT. S.HYMA

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

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 604 of 2009 ............................................................... Dated this the 8^th day of August, 2016

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J U D G M E N T

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Appellant is the 1^st accused in S.C. No.1207/2005 of

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the Additional Sessions Court (Adhoc-III), Thiruvananthapuram, who stands convicted under Section 8 (2) of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for three more months.

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The prosecution case is that on 02.05.2003 at about 12.15 p.m., the 1^st accused was found pouring arrack from a 10 litre jerry can to a 5 litre can held by the 2^nd accused. During the said process, they were apprehended by PW1 Excise Inspector and party. A total quantity of 10 litres of arrack was seized from the accused through Ext.P3 mahazar. The accused were placed under arrest through

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Crl. Appeal No. 604 of 2009

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-: 2 :-

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Ext.P1 series arrest memos. He registered Ext.P4 crime and occurrence report and produced the accused along with the material objects before court. The properties were produced through Ext.P5 property list. The forwarding note was also furnished. PW5 Excise Inspector of Thirupuram Excise Range conducted the investigation and filed the final report on getting Ext.P8 certificate of chemical analysis.

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On the side of the prosecution PWs.1 to 6 were examined, Exts.P1 series to P9 were marked and MOs.1 to 3 were identified. On the side of the accused DW1 was examined and Exts.D1 and D2 were marked. The court below found the appellant as well as the 2^nd accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid. The benefit of Section 427(1) Cr.P.C. was extended to the 2^nd accused since he was undergoing imprisonment in another case during the period in which the impugned judgment was pronounced.

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Crl. Appeal No. 604 of 2009

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-: 3 :-

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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 pointed out that no sample was drawn from the contraband by PW1

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on the spot in the presence of the accused persons. Without taking a sample, the contraband was produced before court and the contraband was returned and subsequently the contraband was again produced and a sample was allegedly drawn by PW6 property clerk of the court, that too without any further order. It has also been argued that the copy of the forwarding note has not been produced and even the date on which the sample was allegedly drawn is not discernible and therefore, Ext.P8 cannot be relied on for entering into a conviction.

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PW1 has proved the seizure. The evidence of PW1 is corroborated by the evidence of PW4. PW1 has registered the crime. Thereafter, he had rightly produced the contraband before court. Ext.P5 is the property list whereby

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Crl. Appeal No. 604 of 2009

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-: 4 :-

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the properties were allegedly produced before court. It is shown that Ext.P5 was initially filed before court on 2.05.2003, and on the same day, the same along with the contraband was returned. Again, Ext.P5 was filed before court on 05.05.2003. On 05.05.2003 a submission was recorded in Ext.P5 by some officers of the court thereby seeking permission to return the contraband by assigning the reason that there is no sufficient space in the property room. The same was approved by the learned Magistrate on 05.05.2003 itself. Therefore, it is not discernible from Ext.P5 as to the date on which the contraband was again submitted or the date on which the sample was allegedly drawn by PW6. The copy of the forwarding note has not been produced and marked.

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The evidence of PW6 also does not show the

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date on which the sample was drawn or the date on which the sample was forwarded for chemical analysis. According to PW6, a sample of 180 ml was drawn from the contraband

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Crl. Appeal No. 604 of 2009

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-: 5 :-

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on the basis of the forwarding note. He has no case that he had taken orders from the learned Magistrate for the same. No such orders are available in Ext.P5. When there is no

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evidence to show the date on which the sample was allegedly drawn, the date on which the contraband was actually produced and also when PW1 has not cared to draw the sample on the spot in the presence of the appellant, this Court is of the view that the court below ought not to have relied on Ext.P8 certificate of chemical analysis to enter into a conviction in this case. The conviction and sentence passed by the court below against the appellant are labile 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 stands acquitted.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy // P.S. to Judge.

Sathyan @ Kannan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sathyan @ Kannan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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