The High Court set aside the conviction for violating the Abkari Act due to unreliable chemical analysis evidence caused by delay, but upheld the conviction for assaulting a police officer under Section 332 IPC.
Conviction and sentence under Section 8(2) of the Abkari Act set aside; conviction and sentence under Section 332 IPC maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938
CRL.A.No. 736 of 2009
SC 346/2005 OF ADDL. DISTRICT COURT (ADHOC)-II, ALAPPUZHA DATED 20-02-2009
APPELLANT(S)/IST ACCUSED:
RAMANAN, PARAYATTETHIL, VEEYAPURAM PANCHAYATH, PAPYIPPADU MURI, VEEYAPURAM VILLAGE.
BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR GOVERNMENT PLEADER SRI.C.S.HRITWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 736 of 2009 ............................................................... Dated this the 26th day of October, 2016
J U D G M E N T
Appellant is the accused in S.C.No.346/2005 of the Additional Sessions Court(Adhoc-II), Alappuzha, who stands convicted under Section 8(2) of the Abkari Act and Section 332 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for one more month for the offence under Section 8(2) of the Abkari Act and further sentenced to undergo simple imprisonment for three months and to pay a fine of ₹2,500/-, in default, to undergo simple imprisonment for one month for the offence under Section 332 IPC.
7.25 p.m., PW6 Sub Inspector of Police, Veeyapuram and party while on patrol duty, received an information that the
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appellant was engaged in selling arrack by standing near a bridge which is 75 mtrs away from the Veeyapuram junction. PW6 deputed PW2 police constable and another police constable who were present in the police party, to verify the veracity of the information. They were sent to the spot wherein the appellant was allegedly standing and vending arrack. When they advanced, PW2 could see the accused pouring arrack into a glass tumbler for providing it to another person. On seeing PW2 and the other police constables, A1 attempted to run away from the spot. They intercepted A1.
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spot. On seeing them A2 to A6 ran away from the spot. The appellant was caught red handed. On a search of the place where the appellant was standing, a can containing three litres of arrack was seized. Over and above it, the plastic bottle, which was found containing 1½ litres of arrack, which was in the possession of the appellant, was also seized. A sample was drawn and the contraband was seized through Ext.P1 mahazar. The appellant was placed under arrest. PW6 sent PW2 to the hospital accompanied by another police constable. On reaching the Police Station, PW6 registered the crime through Ext.P6 FIR. The properties were produced before court through Ext.P8 property list.
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was marked. No other defence evidence was adduced. The court below acquitted A2 to A6 and fund the appellant guilty of the offences punishable under Section 8(2) of the Abkari
Act and 332 IPC through the impugned judgment. Consequently, the appellant was convicted thereunder and sentenced as aforesaid.
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properly explained.
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shows only two injuries viz. (1) Multiple abbrasion on the body and (2) Lacerated wound on the left knee 13 x 2 cm. The shape of that wound was “U” and it was born deep. PW2 was treated as an inpatient in the hospital and was discharged on 28.08.2002. MO3 was the broken glass by which the appellant had allegedly injured PW2. According to PW4, injury No.2 in Ext.P2 could be caused by stabbing with MO3.
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entire evidence of the said witnesses, this Court does not find anything to discredit or disbelieve their testimony.
chemical analysis, it has to be noted that the sample allegedly drawn on 22.08.2002 was produced before court on 27.09.2002 only. No explanation is forthcoming from PW6 with regard to the said inordinate delay in the production of sample before court. On account of the said inordinate delay in the production of the sample before court, this Court is satisfied that Ext.P4 cannot be relied on. Therefore, there is no sufficient evidence to find the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act. The conviction and sentence passed by
the court below under Section 8(2) of the Abkari Act are liable to be set aside.
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of his official duty, PW2 went over there along with another police constable. It stands proved that the appellant had caused hurt to PW2, while PW2 was engaged in discharge of his official duty as a public servant, evidently with intend to prevent or deter PW2 from the discharge of his official duties. Any further documentary evidence is not required in the light of the clear proved circumstances and evidence involved in this case. Matters being so, it stands proved that the appellant has committed the offence punishable under Section 332 IPC. The conviction under Section 332 IPC is not liable to be interfered with.
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In the result, this Criminal Appeal is allowed in part and the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act are set aside. The conviction and sentence passed by the court below under Section 332 IPC are maintained. It is made clear that the appellant is entitled to set off, of the period, if any, undergone by him in detention in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.
Sd/- B. KEMAL PASHA, JUDGE.
ul/aks/-
// True copy //
P.S. to Judge.
2 issues framed by the court
Whether the conviction under Section 8(2) of the Abkari Act was sustainable given the inordinate delay in producing the chemical analysis sample.
Whether the appellant was guilty of the offence under Section 332 IPC of voluntarily causing hurt to a police officer.
3 provisions across 3 enactments
Ramananan
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
B. Kemal Pasha
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