Allowed

Thankamani v. Excise Inspector

Kerala HC26 Oct 2016CRL.A/657/2009

Case brief

AI extract

What is this about?

In a criminal appeal challenging conviction for transporting arrack, the High Court of Kerala acquitted the appellant. The Court held that substantial delay in producing the seized sample for chemical analysis, coupled with the fact that the female accused was not arrested from the spot due to lack of a female officer and hostile prosecution witnesses, rendered the conviction unsafe. The appeal wa

What did the court decide?

Conviction and sentence set aside; appellant acquitted.

Thankamani Vs Excise Inspector — 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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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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CRL.A.No. 657 of 2009 ( )

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SC 622/2008 of ADDITIONAL SESSIONS COURT (ADHOC-I), KOZHIKODE

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APPELLANT/ACCUSED::

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THANKAMANI, W/O.MOHANAN, THARIPPKKUNIMALAYIL HOUSE, BALUSSERY AMSOM, ERAMANGALAM DESOM,, KOYILANDY TALUK.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENTS/COMPLAINANT & STATE::

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1. THE EXCISE INSPECTOR, BALUSSERY EXCISE RANGE.

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

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BY SR. PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/31/10/16

B. KEMAL PASHA, J

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Crl.Appeal No.657 of 2009

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================

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Dated this the 26^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 Sessions Case No.622 of 2008 of the Additional Sessions Court (Adhoc-I), Kozhikode, who stands convicted under Section 8(1) 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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The prosecution case is that on 10.09.2007,

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at 6.15 p.m., the appellant was found transporting 3 litres of arrack, in a black can of 5 litres capacity through the Tharippakkuni Harijan Colony Road in

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Crl.A.657/09

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Balussery Amsom, Eramangalam Desom, in

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contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Preventive Officer attached to the Balussery Excise Range. He seized the contraband through Exhibit-P1 mahazar. A sample of 180 ml was drawn. He did not place the accused under arrest, since no Woman Police Constable or Woman Officer was present along with him.

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PW5 Excise Inspector, Balussery, before whom the contraband, sample and the records were produced, registered Exhibit-P2 crime and occurrence report. He sent the property to court through ExhibitP3 property list. Forwarding note was furnished, the copy of which is Exhibit-P4. PW7 Excise Inspector conducted the investigation and filed the Final Report on getting Exhibit-P6 certificate of chemical analysis.

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On the side of the prosecution, PW1 to PW7

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Crl.A.657/09 3

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were examined, Exhibits-P1 to P6 were marked and MO1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 8(1) of the Abkari Act, convicted her thereunder, and sentenced her as aforesaid.

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

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The learned counsel for the appellant has argued that this is a false case foisted against the accused and that the court below ought not to have believed the prosecution version, especially when, the appellant was not placed under arrest from the spot and the independent witnesses have not supported the prosecution case. It has also been argued that there was inordinate delay in the production of the sample before court, and forwarding it for chemical analysis.

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Crl.A.657/09

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It is a fact that this is a case, wherein the accused is a woman and she was not placed under arrest from the spot. At the same time, according to PW1, the accused could not be arrested because of the fact that there was no Woman Police Constable or Woman Officer along with him. That explanation can be believed.

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On going through the records, it seems that the learned Magistrate has made an endorsement in Exhibit-P3 property list, which is not fully legible. At the same time, it seems that on 11.09.2007, the learned Magistrate has ordered to return the properties for safe custody at the Excise Office. The same is discernible from the endorsement of the learned Magistrate in Exhibit-P3.

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Exhibit-P4 is the copy of the forwarding note, which shows that the sample was despatched to the laboratory from the Judicial First Class Magistrate's

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Crl.A.657/09

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Court-II, Perambra on 27.09.2007 only. Exhibit-P6 certificate of chemical analysis shows that the said property had reached the court on 27.09.2007. If, as a matter of fact, the properties were not returned on 11.09.2007, that much delay in the despatch of the sample would not have occurred. Therefore, it is evident that the sample and the contraband were returned for safe custody by the learned Magistrate to the Excise Officers on 11.09.2007 and the same were subsequently produced. The date of such production is not available. Matters being so, the benefit of such a doubt has to go to the accused.

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It is evident that there was delay in the subsequent production of the sample before court for forwarding it for chemical analysis. It is not at all safe to rely on Exhibit-P6 for entering a conviction. This Court also considered the fact that the appellant was not arrested from the spot and the independent

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Crl.A.657/09

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witnesses cited by the prosecution to prove the occurrence, had turned hostile to the prosecution. If such a course is adopted, anybody can be trapped, even without an arrest in a case like this. Matters being so, it is not at all safe to convict the accused based on the available evidence in the matter. Therefore, the conviction and sentence passed by the court below are liable to be set aside.

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In the result, this Crl.Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is acquitted.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/28/10/16

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// True Copy //

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P.A. To Judge

Thankamani v. Excise Inspector

Case brief

What is this about?

What did the court decide?

Thankamani v. Excise Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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