Allowed

Noushad v. State of Kerala

Kerala HC16 Jan 2019CRL.A/1840/2006

Case brief

AI extract

What is this about?

In an appeal challenging conviction under the Kerala Abkari Act for possessing arrack, the Court acquitted the appellant. The judgment held that the prosecution failed to prove the liquid seized was arrack due to lack of chain of custody and failure to produce a sample bearing the spot seizure seal.

What did the court decide?

Appellant acquitted of offences under Sections 8(2) and 55(a) of the Kerala Abkari Act; conviction and sentence set aside.

Noushad 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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WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940

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CRL.A.No. 1840 of 2006

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AGAINST THE ORDER/JUDGMENT IN SC 1234/2004 of ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM DATED 02-09-2006

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AGAINST THE ORDER/JUDGMENT IN CP 61/2002 of J.M.F.C.,VARKALA

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APPELLANT/ACCUSED:

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NOUSHAD, S/O. HABEEBULLA, KALIYIL VEEDU, KURINCHILAKKADU,, MITHRUMMALA, KALLARA,, THIRUVANANTHAPURAM.

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BY ADVS. SRI.D.FEROZE SRI.K.ANAND (A-1921) SRI.K.K.DHEERENDRAKRISHNAN SRI.S.RAJEEV SRI.V.VINAY

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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 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 1840 of 2006

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JUDGMENT

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The appellant herein challenges the

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conviction and sentence against him under Sections 8(2) and 55(a) of the Kerala Abkari Act (for short “the Act”) in S.C. No. 1234 of 2004 of the Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge (Adhoc-I), Thiruvananthapuram, on the allegation that at about 5.30 p.m. on 08.04.2000, at Kappil in front of the SNDP Sakha Mandiram, he was found possessing 2.100 litres of arrack in 14 plastic covers of 150 ml capacity. The offence was detected by a Preventive Officer of the Varkala Excise Range. He arrested the accused on the spot, and seized the packets allegedly containing arrack. He produced the accused and the properties at the Excise Range Office where the Excise Inspector registered the crime and occurrence

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report. Another Excise Inspector conducted

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investigation, and submitted final report in court.

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CRL.A.No. 1840 of 2006

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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 five witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 and MO2 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.. He did not adduce any oral evidence, but Exts.D1 and D2 were marked on his side.

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4. On an appreciation of the evidence, the trial court found the accused guilty. On 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 02.09.2006, 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

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CRL.A.No. 1840 of 2006

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in this case, the benefit of which must go to the accused.

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6. Of course, PW1 and PW2 have given

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evidence regarding the arrest of the accused, and the seizure of 14 plastic covers. The crucial question is whether the liquid contained in these covers was identified as arrack, as the prosecution would allege.

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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 seal affixed on the sample. PW1 or PW2 has no case that any sample was collected at the spot of detection. The property list also does not show that any sample was produced in court along with the property produced in court. If so, it is not known when or how the sample was collected, or who collected the sample. Some sample was produced in court for examination. There is nothing to show that

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CRL.A.No. 1840 of 2006

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-5-

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this sample was collected from the possession of the accused. The Ext.P6 copy of the forwarding note does not contain the specimen of the seal affixed on the sample. What it contains is the specimen of the court's seal. The mahazar prepared by PW1 also does not contain the specimen of the seal. In short, there is no thing to identify the sample produced in Court as the sample collected from the possession of the accused. Practically, there is nothing to prove that the quantity of liquid allegedly seized from the possession of the accused was identified as arrack.

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8. PW5, examined as an independent witness turned hostile. PW3 is the Excise Inspector who registered the crime and occurrence report, and PW4 is the Excise Inspector who conducted investigation. The evidence given by these witnesses need not be discussed because there is nothing to identify the liquid as arrack. PW1 has no case that he had collected any sample. It appears that sample was

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CRL.A.No. 1840 of 2006

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collected at the court. Nobody is seen examined to prove such process. It is not known who authorised the court staff to collect sample. These are all the infirmities affecting the prosecution case. In the absence of anything to prove that the liquid contained in the packets produced in court is arrack, the accused is entitled for acquittal.

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In the result, this appeal is allowed. The appellant herein is not found guilty of the offences under Sections 8(2) and 55(a) of the Kerala Abkari Act, and accordingly, he is acquitted of the said offences in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C.No. 1234 of 2004 of the court below will stand set aside. The accused will stand released from prosecution.

Sd/-

P.UBAID

Ds 17.01.2019

JUDGE

Noushad v. State of Kerala

Case brief

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What did the court decide?

Noushad v. State of Kerala

Case brief

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What did the court decide?

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