Allowed

Radha v. State of Kerala

Kerala HC2 Jul 2019CRL.A/1176/2006

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the conviction and sentence passed under Section 8(2) of the Abkari Act. The judgment held that the prosecution failed to prove tamper-proof despatch and sampling of the contraband due to missing sample seal on the forwarding note and failure to examine the thondi clerk.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond discharged.

Radha Vs State of Kerala — Narcotics (NDPS) | 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 B.SUDHEENDRA KUMAR

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TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941

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CRL.A.No.1176 of 2006

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AGAINST THE ORDER/JUDGMENT IN SC 649/2000 of ADDITIONAL SESSIONS COURT (ADHOC)-IV, TRIVANDRUM DATED 25-04-2006

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AGAINST THE ORDER/JUDGMENT IN CP 62/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL

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APPELLANT/S:

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RADHA

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D/O. SREEMATHY, KULATHARA VEEDU, AYILAM DESOM, MUDAKKAL VILLAGE.

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BY ADV. SRI.J.JAYAKUMAR

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RESPONDENT/S:

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

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OTHER PRESENT:

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SRI.E.C.BINEESH,PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No.1176 of 2006

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JUDGMENT

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The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

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2. The prosecution allegation is

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that on 18.09.1998 at 9.30 a.m., the

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appellant was found in possession of 2 litres of arrack in contravention of the provisions of the Abkari Act.

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3. Heard.

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4. The learned counsel for the

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appellant has argued that since no sample seal was affixed at the space provided for the same in the copy of the forwarding note,

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the appellant is entitled to benefit of doubt. The learned counsel for the appellant

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CRL.A.No.1176 of 2006

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relied on the decision of this Court in Krishnan H. v. State [2015(1) KHC 822] to support his argument.

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5. Ext.P9 is the copy of the forwarding note, which does not contain the sample seal at the place provided for the same. In Krishnan H.(supra), the Court held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided in the original forwarding note.

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6. In this case, no sample seal was seen affixed in Ext.P9 copy of the forwarding note. No evidence was adduced by the prosecution to show that the sample seal was

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CRL.A.No.1176 of 2006

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affixed on the original forwarding note. In the said circumstances, it cannot be said that the prosecution could establish the tamper-proof despatch of the sample to the laboratory.

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7. It is also to be noted that the Detecting Officer had seized the contraband as such from the spot and thereafter, the same was produced before the court as per Ext.P8 properly list. Ext.P8 would show that a can having a capacity of 2.5 litres containing about 2 litre of arrack was produced before the court on 18.09.1998. Ext.P10 is the certificate of Chemical Analysis, which would show that one sealed

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bottle containing 160 ml of sample was

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CRL.A.No.1176 of 2006

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received in the laboratory. This would show that the sample was drawn from the contraband after its production before the court. However, the thondi clerk, who had drawn the sample from the contraband and forwarded the same to the laboratory, was not examined before the court.

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8. This Court in Sasidharan v. State of Kerala [2007 (1) KLT 720] held that without the link evidence of actual sampling by the concerned clerk of the court by drawing the sample from the can and sending the same in

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a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the

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CRL.A.No.1176 of 2006

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offence against the appellant

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9. In this case, the Thondi Clerk, who

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had drawn the sample was not examined to

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prove the drawing of the sample from the contraband and sending the same to the laboratory in a tamper-proof manner. Since

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there is no evidence regarding the drawing

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of the sample and sending the same to the laboratory in a taper-proof manner, it cannot be said that the sample produced before the court and analysed in the laboratory was the simple drawn from the contraband seized from the appellant. In the said circumstances, there is no link evidence connecting the appellant with the

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sample analysed in the laboratory. In view

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CRL.A.No.1176 of 2006

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of the above reason, the conviction and sentence passed by the court below on the strength of Ext.P10 certificate of chemical analysis cannot be sustained and consequently, I set aside the same.

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In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

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Sd/-

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B. SUDHEENDRA KUMAR, JUDGE

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STK

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//TRUE COPY//

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//P.A. TO JUDGE//

Radha v. State of Kerala

Case brief

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What did the court decide?

Radha v. State of Kerala

Case brief

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