The High Court allowed the criminal appeal, setting aside the conviction and sentence. The court held that the deliberate non-compliance of mandatory provisions of Section 53A(2) of the Abkari Act by the detecting officer created serious doubts, rendering the conviction unsafe.
Conviction and sentence set aside; appellant acquitted.
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
TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938
CRL.A.No. 761 of 2009 (A)
AGAINST THE ORDER/JUDGMENT IN SC.409/2008 of SESSIONS COURT (ADHOC)-II, MANJERI DATED 28-02-2009
APPELLANT(S)/ACCUSED:
RADHAKRISHNAN @ BABU
AGED 29 YEARS, S/O. KUTTIMARAN, KOORIKKUNNU HOUSE, MUTHUVALLUR AMSOM, VILAYIL DESOM ERNAD TALUK.
BY ADV. SRI.P.SAMSUDIN
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE RANGE OFFICER, MALAPPURAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R BY SR. PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
Crl. Appeal No.761 of 2009
Dated this the 27th day of September, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Appellant is the accused in S.C. No.409/2008 of
the Additional Sessions Court, Adhoc-II, Manjeri, who stands convicted under Section 55(g) 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 six months.
Crl.A.761/2009
: 2 :
in contravention of the provisions of the Abkari Act.
offence. He placed the accused under arrest through Ext.P2 arrest memo. He seized the contraband through Ext.P1 mahazar. Two samples of 500 ml. each were drawn from the contraband. PW1 destroyed the balance quantity of wash then and there. He registered Ext.P4 crime and occurrence report and produced the sample before court through Ext.P5 property list. He furnished the forwarding note, the copy of which is Ext.P6. PW5 Excise Inspector, Manjeri conducted the investigation and he filed the final report on getting Ext.P9 certificate of chemical analysis.
Crl.A.761/2009
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and sentenced him as aforesaid.
was introduced by way of an amendment with effect from
Crl.A.761/2009
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03.09.2002, where any such material has been seized, the authorised officer should prepare an inventory of such liquor or material showing such details relating to its description, quality, quantity, etc. and thereafter make an application to any Magistrate for the purpose of certifying the correctness of the inventory. Further, the photographs of such item has also to be taken in the presence of the Magistrate and thereafter, representative samples have to be drawn. Instead of complying with those formalities, PW1 had allegedly destroyed the balance quantity of the contraband after drawing two samples of 500 ml. each. The deliberate non compliance of the mandatory provisions contained in Section 53A(2) of the Abkari Act in a case like this causes serious doubts in the prosecution case. Matters being so, it is not at all safe to convict the accused in this case by merely relying on Ext.P7 certificate of chemical analysis. The conviction and sentence passed by the court below are,
Crl.A.761/2009
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therefore, liable to be set aside.
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.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/27/09
// True Copy //
PA to Judge
1 issue framed by the court
Whether the conviction under Section 55(g) of the Abkari Act is sustainable when the mandatory procedure of Section 53A(2) of the Abkari Act was not followed during the seizure of contraband.
2 provisions across 1 enactments
RADHAKRISHNAN @ BABU
STATE OF KERALA
B. KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
