Allowed

Ajayakumar v. State of Kerala

Kerala HC25 Jan 2019CRL.A/1551/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against conviction under the Kerala Abkari Act. The court found serious infirmities including improper sample marking, police station seal instead of officer's seal, delay in producing properties, and the detecting officer acting as investigator, leading to acquittal of the appellants.

What did the court decide?

Appellants acquitted of the offence. Conviction and sentence set aside. Appellants released from prosecution.

Ajayakumar 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 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

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CRL.A.No. 1551 of 2006

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AGAINST THE ORDER/JUDGMENT IN SC 536/2003 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 14-07-2006

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APPELLANTS/ACCUSED:

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1 AJAYAKUMAR, S/O. SOMAN, AJEESH BHAVAN, SWARGAMMETTU BHAGAM,, RAMAKKALMETTU KARA, KARUNAPURAM VILLAGE.

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2 AZEEZ S/O. VAHAB VADAKKETHAZHE VEEDU SWARGAMMETTU BHAGAM, RAMAKKALMETTU KARA,, KARUNAPURAM VILLAGE.

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BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA

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RESPONDENT/COMPLAINANT:

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

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OTHER PRESENT:

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SRI SANTHOSH PETER-PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 1551 of 2006

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JUDGMENT

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The appellants herein are the two accused in

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in S.C. No. 536 of 2003 of the Court of Session, Thodupuzha. They faced trial before the learned Additional Sessions Judge (Adhoc-II), Thodupuzha, under Sections 55(a) and 8(2) of the Kerala Abkari Act (for short “the Act”) on the allegation that at about 4.25 p.m. on 30.10.2000, they were found jointly possessing four litres of arrack contained in two plastic cans. One plastic can containing two litres of arrack was seen in the hands of the first accused, and the other plastic can containing two litres was seen in the hands of the second accused. The offence was detected by the Sub Inspector of Police, Nedumkandam. The prosecution would allege that on seeing the police party, the second accused ran off and escaped after abandoning the plastic can, but the first accused was arrested on the spot. The two plastic cans allegedly containing arrack were

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CRL.A.No. 1551 of 2006

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seized as per a mahazar by the Sub Inspector. On the

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basis of the arrest and seizure made by him, he registered the crime, and he also conducted investigation. The Circle Inspector of the concerned circle verified the investigation, and submitted final report in court.

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2. The two accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined three witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 to MO5 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. They did not adduce any evidence in defence.

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4. On an appreciation of the evidence, the trial court found both the accused guilty under Section 8(2) of the Act. On conviction, they were

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CRL.A.No. 1551 of 2006

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sentenced to undergo rigorous imprisonment for one year each, and to pay a fine of Rs.1 lakh each. Aggrieved by the judgment of conviction dated 14.07.2006, the two accused have come up in appeal.

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

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6. Of the three witnesses examined in the trial court, PW3 is the Sub Inspector who detected the offence, and also investigated the case. The crime was also registered by him. PW2 is the Police Constable who assisted the Sub Inspector. PW1, examined as an independent witness, turned hostile. PW2 and PW3 have given evidence regarding the arrest of the first accused on the spot, and

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the seizure of two plastic cans allegedly containing arrack. The second accused was arrested

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CRL.A.No. 1551 of 2006

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by the detecting officer himself on the next day.

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The crucial question is whether the liquid contained in the two plastic cans seized by the Sub Inspector was identified as arrack, as the prosecution would allege. The detection mahazar and also the evidence of the Sub Inspector shows that he had collected two samples each from the two cans. He had not affixed any specific mark to identify the samples taken from each plastic can. Two samples were given the mark No.1, and the other two samples were given the mark No.2. One sample with mark No.1 and another with mark No.2 were sent for analysis. It is not known whether these two samples were taken from the two plastic cans or from the same plastic can because there is nothing to identify the samples specifically.

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7. This Court has settled that the copy of

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

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CRL.A.No. 1551 of 2006

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seal affixed on the sample. It must be the personal seal of the detecting officer who detected the offence, and this is absolutely necessary to identify the sample properly. The forwarding note in this case does not contain the personal seal of the Sub Inspector. What it contains is only the Police Station seal. By a Police Station seal, a sample cannot be identified. Thus, there is nothing to

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identify the samples produced in court as those collected from the possession of the two accused, or to prove that the liquid contained in the plastic cans produced in this case was identified as arrack.

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8. This Court has also settled that in cases like this, the properties must be produced in court without delay. The detection in this case was made on 30.10.2000, but the properties were produced in court only on 02.12.2000. Nobody has got any explanation for this delay, and it is not known in

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whose safe custody the properties were till

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CRL.A.No. 1551 of 2006

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02.12.2000. This is also an infirmity affecting the

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prosecution case.

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9. The legal position now stands settled by

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the Hon'ble Supreme Court that in a case where the detecting officer will have to come to court as a prominent witness to prove the factual aspects, he cannot investigate the case. Here, the detection was made by PW3, and investigation was also done by him. The circle Inspector only verified the investigation, and submitted final report in court. Everything material as part of investigation was done by the Sub Inspector himself. This is an illegality vitiating the whole prosecution in view of the legal position recently settled by the Hon'ble Supreme Court. Thus, I find that there are infirmities and illegalities in this case vitiating the whole prosecution case, and the benefit of all these must go to the accused by way of acquittal.

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CRL.A.No. 1551 of 2006

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In the result, this appeal is allowed. The

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appellants herein are not found guilty of the offence under Sections 8(2) of the Kerala Abkari Act, and accordingly, they are acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against them in S.C.No. 536 of 2003 of the court below will stand set aside. The appellants will stand released from prosecution.

Sd/-

P.UBAID

Ds 25.01.2019

JUDGE

Ajayakumar v. State of Kerala

Case brief

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Ajayakumar v. State of Kerala

Case brief

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