Allowed

Raju v. State of Kerala

Kerala HC18 Jan 2019CRL.A/1347/2005

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against conviction under the Kerala Abkari Act. The court found infirmities in evidence, including missing forwarder notes with specimen seals and delays in producing properties, necessitating acquittal of the appellant.

What did the court decide?

Appellant acquitted under Section 386(b)(i) Cr.P.C.; conviction and sentence set aside; appellant released from prosecution.

Raju 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 P.UBAID

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FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940

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CRL.A.No. 1347 of 2005

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AGAINST THE ORDER/JUDGMENT IN SC 359/2000 of SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA DATED 27-06-2005

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APPELLANT/ACCUSED:

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RAJU, S/O. KOCHUCHERUKAN, USHAMANDIRATHIL, CHERUVACKAL MURI, ILAMADU VILLAGE.

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BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN

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RESPONDENTS/COMPLAINANT:

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

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2 THE SUB INSPECTOR OF POLICE POOYAPPALLY POLICE STATION, POOYAPPALLY.

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OTHER PRESENT:

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SRI.SANTHOSH PETER (PUBLIC PROSECUTOR)

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 1347 of 2005

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J U D G M E N T

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The appellant herein challenges the

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conviction and sentence against him under Section 55(g) of the Kerala Abkari Act (for short “the Act”) in S.C. No. 359 of 2000 of the Special Additional Sessions Court for the trial of Abkari Act Cases, Kottarakkara. He faced trial before the learned trial Judge on the allegation that when the Sub Inspector of Police, Pooyappally, inspected his house premises at about 6.15 p.m. on 19.10.1999 on the basis of secret reliable information, he was found possessing some quantity of wash contained in two aluminium pots and a plastic can for the purpose of distilling arrack. The accused was arrested on the spot by the Sub Inspector, and the contraband articles were seized as per a mahazar. After taking the required sample, the remaining quantity of wash contained in the three containers was destroyed at the spot of detection itself. On

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CRL.A.No. 1347 of 2005

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the basis of the arrest and seizure, the Sub Inspector registered the crime, he himself investigated the case, and submitted final report in court.

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2. The accused appeared before the

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learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined four witnesses, and proved Exts.P1 to P4 documents in the trial court. The MO1 to MO3 properties were also identified during trial.

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3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. He also contented that this is a false case foisted

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at the instance of a Police Constable due to previous enmity. To probabilise the defence case, he also examined a witness on his side as DW1.

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4. On an appreciation of the evidence,

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the trial court found the accused guilty. On

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CRL.A.No. 1347 of 2005

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conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 27.06.2005, the accused has come up in appeal.

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5. On hearing both sides, and on a perusal of the materials, I find some infirmities and doubtful circumstances in this case, the benefit of which must go to the accused.

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6. Of the four witnesses examined in the trial court, PW4 is the Sub Inspector who did everything, including the detection, and PW3 is the Police Constable who assisted him. PW1 and PW2 examined as independent witnesses, turned hostile.

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PW3 and PW4 have given evidence regarding the arrest of the accused, and the seizure of some articles. The crucial question is whether the object or fluid alleged to have been seized from the possession of the accused was identified as

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CRL.A.No. 1347 of 2005

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wash, as the prosecution would allege.

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7. This Court has settled the legal position that the copy of the forwarding note produced in court must contain the specimen of the seal affixed on the sample. Copy of the forwarding note is not seen produced or proved in this case. It is not known what seal was affixed on the sample

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and the other properties by PW4. The detection mahazar also does not show the specimen of the seal affixed on the sample. PW4 or PW3 has not stated in evidence what seal was affixed on the sample and the other properties. Thus, there is nothing to identify the sample produced in court as the one collected from the possession of the accused, or to identify the properties produced in court.

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8. This Court has also settled that the properties in such cases must be produced in court without any delay. The detection was made by PW4 on 19.10.1999. The Ext.P3 property list shows that

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CRL.A.No. 1347 of 2005

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the properties were produced in court only on 04.11.1999. So, PW4 has no explanation for this

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delay, and it is not known in whose custody the properties were till 04.11.1999. This is a circumstance probabilising tampering with the properties.

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9. The evidence of PW4 is that he had

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collected only two samples. He does not specify whether it was collected from the plastic can, or any one of the aluminium pots seized by him. But the evidence of PW3 is that the Sub Inspector had collected two samples each from the three containers. This means that PW4 had collected six samples. But only two samples were produced in

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court, and one of the samples was sent for analysis. Of course, as already found, there is nothing to identify the said sample as the one seized from the possession of the accused. In such a situation, the report of chemical analysis will

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CRL.A.No. 1347 of 2005 -7-

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not bind the accused. As discussed above, I find

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that there are so many infirmities and doubtful circumstances in this case. Everything including investigation was done by the Sub Inspector who detected the offence. In the absence of proper and satisfactory legal evidence, the accused cannot be found guilty.

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In the result, the appeal is allowed. The appellant is found not guilty of the offence under 55(g) of the Act, and he is acquitted of the offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in S.C. No. 359 of 2000 of the court below will stand set aside, and he will stand released from the prosecution.

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Sd/-

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Ds 18.01.2019

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P.UBAID JUDGE

Raju v. State of Kerala

Case brief

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What did the court decide?

Raju v. State of Kerala

Case brief

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