Allowed

Chandran v. State of Kerala

Kerala HC28 Jan 2019CRL.A/1001/2006

Case brief

AI extract

What is this about?

This judgment sets aside the conviction and sentence of the appellant for possessing arrack under Section 8(2) of the Kerala Abkari Act. The Court found critical infirmities: the sample seized lacked a seal specimen in the forwarding note and mahazar, making analysis binding impossible, and the investigation was conducted by an officer beyond his territorial limits without valid government authori

What did the court decide?

The appellant is acquitted of the offence, the conviction and sentence are set aside, and the appellant is released from prosecution. Any amount deposited as a condition for suspension of sentence is

Chandran Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.UBAID

¶4

MONDAY, THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940

¶5

CRL.A.No. 1001 of 2006

¶6

AGAINST THE JUDGMENT IN SC 1082/2004 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 04-05-2006

¶7

APPELLANT [ACCUSED] :

¶8

CHANDRAN. S/O.KUNHIRAMAN, NELLIYULLA PARAMBATH, VELLIYOD AMSOM, KOLIPARA, KOZHIKODE DISTRICT.

¶9

BY ADVS. SRI.K.Y.SUDHEENDRAN SMT.R.REMA SRI.K.AJITH KUMAR

¶10

RESPONDENT [RESPONDENT] :

¶11

STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THROUGH THE SUB INSPECTOR OF POLICE, VALAYAM, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶12

OTHER PRESENT:

¶13

SRI SANTHOSH PETER-PP

¶14

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

CRL.A.No. 1001 of 2006

¶16

¶17

JUDGMENT

¶18

The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (“the Act”) in S.C.No.1082 of 2004 of the Court of Session, Kozhikode.

¶19

He faced trial before the learned Additional Sessions Judge, Adhoc-II, Kozhikode on the allegation that at about 8.30 p.m. on 17.08.2003, he was found possessing 10 litres of arrack in a plastic can on the public road at Puthukkayam. The offence was detected by the Sub Inspector of Police, Valayam. He arrested the accused, and seized the contraband article as per a mahazar. On the basis of the arrest and seizure, the Sub Inspector registered the crime. The Sub Inspector of Police, Nadapuram conducted investigation, and thereafter the Sub Inspector of Police, Valayam submitted final report in Court.

¶20

The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined five witnesses, and proved Exts.P1 to P10 documents in the trial court. The MO1 property was also marked. The accused projected a defence of total denial. He did not adduce any evidence in defence.

¶21

¶22

CRL.A.No. 1001 of 2006

¶23

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for 1 ½ years, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). Aggrieved by the judgment of conviction dated 04.05.2006, the accused has come up in appeal.

¶24

On hearing both sides, and on a perusal of the materials, I find some serious infirmities in this case, the benefit of which must go to the accused. Of the five witnesses examined in the trial court, PW1 is the Sub Inspector who detected offence, and PW5 is the Sub Inspector who conducted investigation. Two witnesses examined as independent witnesses turned hostile. PW1 and PW3 have given evidence regarding the arrest of the accused, and the seizure of a plastic can containing some liquid. The crucial question is whether the liquid therein was identified as arrack. This Court has settled that the copy of the forwarding note produced in Court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. The Ext.P9 forwarding note does not contain the specimen of any seal. The mahazar also does not contain any specimen. PW1 has not stated what seal he had affixed on the sample, and the other property.

¶25

CRL.A.No. 1001 of 2006

¶26

¶27

Thus, there is nothing to identify the sample produced in Court as the sample taken from the possession of the accused. In such a circumstance, the Ext.P10 report of analysis will not bind the accused. Practically, there is nothing to prove that the liquid contained in the MO1 can was identified as arrack.

¶28

This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the Officers appointed as Abkari Officers by the Government under Section 4 of the Act. Police Officers got powers under the Act only in 1996 as per the notification issued as SRO 321/1996. As per this notification only Police Officers of and above the rank of Sub Inspector were given powers to discharge the functions under the Act within their respective territorial limits. The Sub Inspector or any other competent officer cannot discharge the functions like detection or investigation beyond his territorial limits. The detection in this case was made by the Sub Inspector of Police, Valayam within his limits, but investigation was conducted by the Sub Inspector of Police, Nadapuram. It is not known in what circumstance PW5 happened to conduct investigation. The prosecution has no case that PW5 was put an additional charge of the Sub Inspector of Police, Valayam at that time. It appears that

¶29

CRL.A.No. 1001 of 2006

¶30

¶31

PW5 was authorised by his superior officer. Superior officers cannot authorise subordinate officers to discharge functions under the Act. Such authorisation can be made only by the Government under Section 4 of the Act. Investigation conducted by an incompetent officer will vitiate the prosecution.

¶32

In the result, this appeal is allowed. The appellant is not found guilty of the offence under Section 8(2) of the Kerala Abkari Act. Accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C.No.1082 of 2004 of the court below will stand set aside, and the appellant will stand released from prosecution. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence will be released.

¶33

Sd/-

¶34

P.UBAID JUDGE

¶35

rkj

Chandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chacko Vs State of Kerala

Ajayakumar Vs State of Kerala

Kumari Vs State of Kerala

State of Kerala Vs K.K.Sreedharan

Suresh Babu Vs State of Kerala

Saraswathy Vs State of Kerala