Allowed

Raveendran @ Kunjumon v. State of Kerala

Kerala HC9 Feb 2016CRL.A/648/2004

Case brief

AI extract

What is this about?

High Court acquitted the appellant convicted under the Kerala Abkari Act for selling arrack. The Court held that the prosecution failed to comply with legal formalities regarding seizure seals and forwarding notes, breaking the chain of evidence required to prove possession beyond reasonable doubt.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellant set at liberty.

Raveendran @ Kunjumon Vs State of Kerala — Cheque Dishonour | 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 P.D.RAJAN

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TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937

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CRL.A.No. 648 of 2004 (B)

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AGAINST THE JUDGMENT IN SC NO.540 OF 2001 OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-II, PATHANAMTHITTA DATED 16-03-2004

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APPELLANT(S)/ACCUSED:: ----------------------

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RAVEENDRAN @ KUNJUMON KUZHIPARAMBIL VEEDU, MUTHUPEZHUNKAL ARAVAPPULAM VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS

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RESPONDENT(S)/COMPLAINANT::

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---------------------------

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

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BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J. -------------------------------Crl. Appeal No.648 of 2004 ---------------------------------Dated this the 9^th day of February, 2016

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J U D G M E N T

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This appeal is preferred against the conviction

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and sentence passed by the Additional Sessions Judge (Adhoc), Fast Track-II, Pathanamthitta in S.C. No.540 of 2001 under Sec.8(2) of the Kerala Abkari Act. The appellant was charge sheeted by the Additional Sessions Judge under Sec.8(2) and 55(a) and (h) of the Kerala Abkari Act. The charge against the appellant was that on 20.07.1999 at 6.00 p.m., the Sub Inspector of Police, Konni got information that the appellant was conducting sale of arrack in his house. On the basis of that information, the Sub Inspector, Konni arrived at his residential house and detected two litres of arrack from there. The contraband articles were seized after preparing a mahazar. Reaching at the police station, he registered the crime. After completing investigation, he laid charge before the Judicial First Class Magistrate Court-II, Pathanamthitta. From there, the case was

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Crl. Appeal No.648 of 2004 2

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committed to Sessions Court, Pathanamthitta. Subsequently, it was made over to the Additional Sessions Court (Fast Track II), Pathanamthitta.

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During trial, prosecution examined four witnesses and marked Exts.P1 to P6 as documentary evidence. Material objects 1 and 2 were admitted by the trial court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. During cross examination, he did not adduce any defence evidence. He examined DW1 and marked Exts.D1 to D3. Learned Additional Sessions Judge convicted the accused under Sec.8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for two years and fine of Rs.1,00,000/- in default to undergo simple imprisonment for one year.

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Heard the learned counsel appearing for the appellant and the learned Public Prosecutor.

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This Court in Rajamma Vs. State of Kerala

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[2014 (1) KLT 506] held as follows:

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“Mere arrest of the accused with the material object is not sufficient to establish that

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Crl. Appeal No.648 of 2004 3

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the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the

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Crl. Appeal No.648 of 2004 4

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sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with the sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.”

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In the light of the above legal proposition, I

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have gone through the oral evidence of PW4. The evidence of PW4 shows that on 20.07.1999 at 5 p.m., while he was conducting patrol duty, he got information that the accused was conducting sale of arrack in his house. He arrived at the place of occurrence and the appellant was found carrying MO1 and MO2. He inspected MO1 and detected two litres of arrack in it. The witness present there also identified it as arrack. He took 150 m.l. as sample, sealed it at the place of occurrence

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Crl. Appeal No.648 of 2004 5

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and also prepared a mahazar. Reaching at the police station, he registered the crime. Ext.P1 is the FIR, Ext.P2 is the scene mahazar and Ext.P4 is the property list. The accused was subsequently produced before the court and Ext.P3 is the remand report. He affixed the label at the place of occurrence. The balance arrack was destroyed at the place of occurrence. The seized article was produced before the court for chemical examination. Ext.P5 is the chemical examination result. In which, it is reported that 29.14 % of ethyl alcohol was detected in the sample. He completed the investigation and laid charge before the court.

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A perusal of the procedure followed by PW4 shows that, he failed to prepare a seizure mahazar and to affix the sample seal provided as directed in the statute. Therefore, no evidentiary value can be given to the contents in Ext.P5 chemical analysis report. There is no connecting link to show that the same contraband article was seized from possession of the accused. This court in Ravi Vs. State of Kerala [ 2011 (3) KLT 353] held that the prosecution has a duty to show that the sample

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Crl. Appeal No.648 of 2004 6

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drawn from the contraband articles seized from the possession of the accused was reached in the chemical examination lab in a full proof condition. When there is no sample seal and no affixure of label in the seized article, it is presumed that the prosecution failed to prove the case beyond reasonable doubt.

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The legal infirmity in connection with the seizure of arrack and the failure to comply with the necessary statutory formalities show that the prosecution utterly failed to prove the case beyond reasonable doubt. Hence, the appellant is entitled to get the benefit of doubt.

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In the result, the conviction and sentence

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passed by the Additional Sessions Judge (Adhoc), Fast Track-II, Pathanamthitta in S.C. No.540 of 2001 under Sec.8(2) of the Kerala Abkari Act is set aside and the appellant is set at liberty.

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The appeal is allowed accordingly.

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Sd/-

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P.D. RAJAN, JUDGE

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/ True Copy /

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P.A. To Judge

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NS/10/02/2016

Raveendran @ Kunjumon v. State of Kerala

Case brief

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Raveendran @ Kunjumon v. State of Kerala

Case brief

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