Allowed

Radhakrishnan v. State of Kerala

Kerala HC24 Jan 2019CRL.A/1083/2006

Case brief

AI extract

What is this about?

Criminal appeal against conviction under the Kerala Abkari Act. The High Court granted acquittal due to infirmities in prosecution evidence regarding sample identification and because the detecting officer concurrently investigated the case and acted as a prominent witness.

What did the court decide?

Appellant acquitted of the offence under Section 8(2) of the Act; conviction and sentence set aside; accused released from prosecution.

Radhakrishnan Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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 P.UBAID

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THURSDAY, THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940

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CRL.A.No.1083 of 2006

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JUDGMENT IN SC 151/2002 of ADDL. SESSIONS COURT (ADHOC)-III, THIRUVANANTHAPURAM DATED 12-05-2006

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APPELLANT/ACCUSED :-

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RADHAKRISHNAN, S/O.GOVINDAN, CHARUVILA, CHARUVILA LEKSHAM VEEDU, NO.13, AYIROOR VILLAGE, CHIRAYINKIL.

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BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR

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RESPONDENT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.1083/2006

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JUDGMENT

The appellant herein challenges the conviction

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and sentence against him under Section 8(2) of the Kerala Abkari Act (the Act)in S.C.No.151/2002 of the

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Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge (Adhoc)-III, Thiruvananthapuram on the allegation that at about 5.15 p.m. on 15.6.1999, he was found possessing 1.050 litres of arrack, contained in seven packets of 150 ml capacity. The offence was detected by the Excise Inspector of the Varkala Excise Range. He arrested the accused on the spot, and seized the seven packets as per a mahazar. The

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Excise Inspector also registered the crime and occurrence report on the basis of the arrest and seizure, and he himself conducted investigation. Another Excise Inspector submitted final report in court.

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The accused appeared before the learned trial Judge, and pleaded not guilty to the charge

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CRL.A.No.1083/2006

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framed against him. The prosecution examined four witnesses, and proved Exts.P1 to P7 documents in the

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trial court. The MO1 to MO3 properties were also identified during trial. The accused examined two witnesses in defence, and projected a defence of total denial. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for six months, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 12.5.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of

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the materials, I find some infirmities affecting the prosecution, and the benefit of these factual and legal infirmities must go to the accused by way of acquittal. Of the four witnesses examined in the

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trial court, PW3 is the Excise Inspector, who detected the offence, and also conducted investigation. PW2 is the Preventive Officer, who assisted the Excise Inspector, and PW4 is the Excise Inspector, who submitted final report in court. PW1

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CRL.A.No.1083/2006

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examined as independent attestor to the mahazar

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turned hostile. PW2 and PW3 have given evidence

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regarding the arrest of the accused, and the seizure of seven packets allegedly containing arrack. The crucial question is whether the liquid contained in any of the packets was identified as arrack, as the prosecution would allege. There is nothing to show that any sample was collected by PW3 at the time of

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detection. The property list produced in court shows that all the seven packets were produced in court, and no packet was produced as sample.

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This Court has settled that the copy of the

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forwarding note produced in court must be proved in evidence, and it must contain the specimen of the

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seal affixed on the sample. The copy of the forwarding note is not seen proved in this case. However, the copy available as part of the records contains only the specimen of the court seal. It does not contain the specimen of the personal seal

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of the detecting officer. It is not known what seal was affixed on the sample by PW3. A sample was sent

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CRL.A.No.1083/2006

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for analysis from the court. It is not known what sample it is. The Ext.P7 report of analysis shows that a sample packet containing 180 ml of liquid was received at the laboratory. PW3 or PW2 has no case that the seized articles included any packet of 180 ml. Every packet produced in court contained only 150 ml of liquid. If so, the sample analysed as per the Ext.P7 report must be some other sample. It is not known who collected sample, or what sample was sent for analysis in this case. PW3 has no case that he had collected any sample. Thus, there is nothing to identify the sample produced in court as the one collected from the possession of the

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accused, and there is nothing to prove that the liquid contained in any of the packets produced in court was identified as arrack. On this ground itself, the accused is entitled for acquittal.

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5. The legal issue now stands settled by the Hon'ble Supreme Court that in a case where the Detecting Officer will have to come as a prominent witness to prove the factual aspects, he cannot

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CRL.A.No.1083/2006

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investigate the case. PW3 is the Detecting Officer in this case. The investigation was also conducted by him. PW4 only submitted final report in court.

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The investigation conducted by the Detecting Officer, who is the prominent witness on factual aspects, will vitiate the whole prosecution as recently settled by the Hon'ble Supreme Court in Mohan Lal v. The State of Punjab [AIR 2018 SC 3853] .

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In the result, this appeal is allowed. The appellant herein is found not guilty of the offence under Section 8(2) of the Act, and accordingly, he is acquitted of the said offence in appeal under

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Section 386(b)(i) Cr.P.C. The conviction and

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sentence against him in S.C.No.151/2002 of the court below will stand set aside, and the accused will stand released from prosecution.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/31.1.2019

Radhakrishnan v. State of Kerala

Case brief

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Radhakrishnan v. State of Kerala

Case brief

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