Allowed

Maniyan v. the State of Kerala

Kerala HC7 Oct 2016CRL.A/659/2009

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal filed by an accused convicted of violating the Abkari Act. The Court set aside the conviction and sentence because the seized sample and the certificate of chemical analysis were not produced in court, rendering the evidence unreliable and unsafe for sustaining the conviction.

What did the court decide?

The conviction and sentence of the appellant below were set aside and the appellant is acquitted.

Maniyan Vs the 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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FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938

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CRL.A.No. 659 of 2009

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AGAINST THE JUDGMENT IN S.C.NO. 1641/2001 OF ADDITIONAL SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM

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APPELLANT(S)/ACCUSED :

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MANIYAN, S/O. BALAN PILLAI, ELYANOORKONAM, ROADARIKATHU PUTHEN VEEDU, KAVINPURAM, THURUTHUMOOLA MURI, VILAPPIL VILLAGE.

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

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RESPONDENT(S) :

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THE STATE OF KERALA, REPRESENTED BY THE 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 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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B. KEMAL PASHA, J.

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Crl. Appeal No.659 of 2009

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Dated this the 7^th day of October, 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.1641/2001 of

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the Additional Sessions Court, Adhoc-III, Thiruvananthapuram, who stands convicted for the offence

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under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for three months.

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The prosecution case is that on 05.06.1997 at 3.30 p.m., the accused was found in possession of 2 litres of arrack in a jerry can at Eyyanoorkonam, Kavinpuram within the local limits of Vilappilsala Police Station, in contravention of the provisions of the Abkari Act.

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PW3 Sub Inspector of Police detected the

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offence. He seized the contraband through Ext.P1 mahazar

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Crl.A.659/2009

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: 2 :

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and placed the accused under arrest. PW3 had drawn a sample of 250 ml. of arrack from the contraband. He produced the contraband before court through Ext.P4 property list. Forwarding note was furnished. On getting Ext.P5 certificate of chemical analysis, he filed the final report.

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On the side of the prosecution, PWs 1 to 4 were examined, Exts.P1 to P5 were marked, and MOs 1 and 2 were identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 58 of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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

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Learned counsel for the appellant has argued that the sample allegedly drawn by PW3 was not produced before court; whereas, the contraband was belatedly produced before court. Thereafter, PW4 had allegedly

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Crl.A.659/2009

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: 3 :

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drawn a sample and forwarded it for chemical analysis. It is argued that, therefore, Ext.P5 certificate of chemical analysis cannot be relied on.

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According to PW3, he seized the contraband and a sample of 250 ml. was drawn by him in a 375 ml. capacity bottle. Strangely enough, Ext.P4 property list shows that a can containing 2 litres of arrack and a glass tumbler of 200 ml. capacity alone were produced before court through Ext.P4. Even though the seizure was on 05.06.1997, the same had reached the court on 09.06.1997 and the same was entered in the property register on 10.06.1997. Even though PW3 had drawn a sample, the same was not produced before court.

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Thereafter, according to PW4, Property Clerk of the Judicial First Class Magistrate's Court, Kattakkada, a sample was drawn by him from the contraband as per the orders of the learned Magistrate and the same was forwarded for chemical analysis. Ext.P4 does not show any

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Crl.A.659/2009

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: 4 :

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such orders passed by the learned Magistrate. No explanation has been offered for the delay in producing the property before court. PW3 has suppressed the sample drawn by him. Thereafter, PW4 had without any authority, allegedly drawn a sample and forwarded the same for chemical analysis. From all these, this Court is satisfied that it is not at all safe to rely on the contents of Ext.P5 certificate of chemical analysis to enter a conviction. Matters being so, 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/07/10

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// True Copy //

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PA to Judge

Maniyan v. the State of Kerala

Case brief

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Maniyan v. the State of Kerala

Case brief

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