Allowed

Abdurahiman @ Paithal v. State of Kerala

Kerala HC23 Aug 2016CRL.A/763/2009

Case brief

AI extract

What is this about?

In this criminal appeal, the accused appellant challenged his conviction for offences under the Abkari Act. The Kerala High Court set aside the conviction and acquitted the appellant due to insufficient evidence regarding the appellant's identification and the chain of custody for the seized contraband.

What did the court decide?

The conviction and sentence passed by the court below are set aside and the appellant is acquitted.

Abdurahiman @ Paithal Vs State of Kerala — Criminal Trial and Appeal | 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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TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938

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CRL.A.No. 763 of 2009 (A)

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SC 407/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI -----------------

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APPELLANT(S)/ACCUSED NO.1:

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ABDURAHIMAN @ PAITHAL

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S/O.KAMMADUNNI, PARAMPATTUPALLIYALI HOUSE, KANJIRAPARAMBU,KARIPOOR,, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT(S)/STATE: --------------------

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STATE OF KERALA REP.BY THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION-THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.763 of 2009

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Dated this the 23^rd day of August, 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.407/2008 of

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the Additional Sessions Court, Adhoc-III, Manjeri, who stands convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹2 lakhs, in default to undergo rigorous imprisonment for six months for each of the offences.

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The prosecution case is that on 03.11.2005 at 12.15 p.m., on a search of the premises of a room, which was in the possession of the appellant and the 2^nd accused, they were found keeping 50 litres of Foreign Made Foreign

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Crl.A.763/2009

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: 2 :

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Liquor worth ₹50,000/-, with the knowledge of the 3^rd accused, who was the owner of the premises, in contravention of the provisions of the Abkari Act. It is alleged that they were keeping the said contraband for sales.

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The offence was detected by PW6, Circle Inspector of Police, Kondotty. He along with the police party smashed the lock of the room, conducted a search and seized 50 bottles each containing one litre of Foreign Made Foreign Liquor. Samples were drawn and the contraband was seized through Ext.P3 search list. As A1 and A2 ran away from the spot, they could not be apprehended. On reaching the police station, he registered the crime through Ext.P8 FIR. PW7, Circle Inspector of Police, Thirurangadi, conducted the investigation and seized Ext.P10 photocopy of the Power of Attorney executed by A3 in favour of A1. PW8, Circle Inspector of Police, Thirurangadi, continued the investigation. PW9, Sub Inspector of Police, Kondotty,

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Crl.A.763/2009

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: 3 :

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filed the final report.

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A3 was not in India since he was working abroad

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during the period of incident. The case against A3 was quashed by this Court. A1 and A2 faced trial before the court below. A1 was convicted and sentenced and A2 was acquitted by the court below.

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On the side of the prosecution, PWs 1 to 10 were examined, Exts.P1 to P11 were marked and MOs 1 to 4 were identified. No defence evidence was adduced. The

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court below found the appellant guilty of the offence punishable under Sections 55(a) and 55(i) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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Heard learned counsel for the appellant and learned Public Prosecutor.

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Learned counsel for the appellant has argued that the appellant was never identified by PW6 and PW2, who were the only occurrence witnesses who supported the prosecution. It has been pointed out that either PW6 or

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Crl.A.763/2009

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: 4 :

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PW2 had no prior acquaintance with the appellant. It has been further argued that there is no evidence to show as to when the properties were produced before court and also as to when the samples were forwarded for chemical analysis. According to the learned counsel for the appellant, therefore, Ext.P9 cannot be relied on for entering a conviction.

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As rightly pointed out by the learned counsel for the appellant, paragraph 10 of the impugned judgment clearly reveals that the court below has disbelieved the evidence of PW2 and PW6 regarding the identification of the appellant. It seems that the court below has relied on Ext.P10 photocopy of the Power of Attorney allegedly executed by A3 in favour of A1. The investigating officer has not even verified the original of the Power of Attorney. Even if such a Power of Attorney is admitted, it cannot be said that A1 was in possession of the said premises as on the date of incident. In order to invite the offences, it should be

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Crl.A.763/2009

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: 5 :

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proved that the appellant was the person, who was keeping the said contraband in his possession in the room. There is no evidence to show that the said room was in the possession of the appellant. Ext.P10 cannot be used as the substitute for identification of the appellant.

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Apart from all the above, there is a serious illegality in the case. The prosecution has not adduced any evidence to show as to when the contraband and samples were produced before court. No property list has been produced and proved. Over and above it, there is no evidence to show as to who had furnished the forwarding note. The copy of the forwarding note is also not available. The same has not been produced and proved. There is no evidence to show as to who had produced the properties before court and as to who had furnished the forwarding note. When there is no such evidence, as rightly pointed

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out by the learned counsel for the appellant, Ext.P9 certificate of chemical analysis cannot be relied on. The

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Crl.A.763/2009

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: 6 :

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same cannot be considered as a certificate of chemical analysis in respect of the sample allegedly drawn from the contraband involved in this case. 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/23/08

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// True Copy //

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PA to Judge

Abdurahiman @ Paithal v. State of Kerala

Case brief

What is this about?

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Abdurahiman @ Paithal v. State of Kerala

Case brief

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