Allowed

Komalan v. State of Kerala

Kerala HC24 Jun 2019CRL.A/191/2004

Case brief

AI extract

What is this about?

Criminal appeal against conviction and sentence for possession of arrack under Section 55(a) of the Abkari Act. The Court held that unexplained delay in producing contraband and sample, coupled with the absence of a forwarding note, vitiated the evidence chain. The appellant was acquitted.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellant acquitted; bail bond discharged.

Komalan Vs State of Kerala — Kerala HC (2019) — LawSathi Research

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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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MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941

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CRL.A.No.191 of 2004

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AGAINST THE JUDGMENT IN SC 233/2000 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 23-01-2004

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APPELLANT/S:

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KOMALAN, S/O. DESAVAN, RAJEEV NIVAS, EAST OF ILAVOORKAVU,, THAZHAM MURI, EAST KALLADA VILLAGE.

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BY AMICUS CURIAE SMT. INDULEKHA JOSEPH

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RESPONDENT/S:

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

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BY ADV. PUBLIC PROSECUTOR SRI. E.C. BINEESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No.191 of 2004

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JUDGMENT

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The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

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The prosecution allegation is that on 15-7-

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1998 at about 4.40 p.m., the appellant was found in possession of 3 litres of arrack in contravention of the provisions of the Abkari Act.

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Since there is no representation for the

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appellant, this Court has appointed Advocate Smt. Indulekha Joseph as amicus curiae to argue the case for

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the appellant.

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CRL.A.No.191 of 2004

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Heard the learned amicus curiae and the

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learned Public Prosecutor.

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The learned amicus curiae has argued that since there was inordinate delay in producing the sample and the contraband before the court, the appellant is entitled

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to benefit of doubt.

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It appears that the incident in this case was on 15-7-2008. However, the contraband article and the sample were received in the court only on 21-7-1998. PW5 was the Sub Inspector of Police, who produced the contraband and the sample before the Court. PW5 stated

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that the contraband and the sample were received in the

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CRL.A.No.191 of 2004

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court only on 21-7-1998. Ext. P3 property list would also show that the contraband article and the sample were received by the court only on 21-7-1998. PW5 stated that eventhough the contraband article and the sample were produced before the court initially, the court returned the same and thereafter, the contraband and the sample were produced before the court only as directed by the court. It appears from Ext. P3 that there was an endorsement on Ext. P3 by the Clerk of the Magistrate Court concerned to the effect that there was no space in the thondi room. Accordingly, the learned Magistrate made an endorsement to entrust the articles with the SHO concerned. Thereafter, the articles were produced before the Magistrate Court concerned on 6-12-2003. It is clear from Ext. P3 that the contraband and the sample

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CRL.A.No.191 of 2004

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were produced before the court for the first time on 21-7-1998. Thereafter, the Station House Officer

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received back the contraband and the sample from the

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Court. After that, the contraband and the sample were produced again before the Court on 6-12-2003. In view of the above evidence, there can be no dispute that the contraband and the sample were produced before the court for the first time only on 21-7-1998. Thus, the evidence given by PW5 in this regard does not appear to be correct. Thus, there was no explanation for the delay in producing the contraband and the sample before the court. Since there was unexplained delay from 15-7-1998 to 21-7-1998 in producing the sample before

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the court, there cannot be any guarantee that the sample produced before the court and analyzed in the

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CRL.A.No.191 of 2004 -6-

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Laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, the

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appellant is entitled to benefit of doubt.

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It is also to be noted that no forwarding note was

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produced and marked in this case. Since the forwarding note was not produced and marked, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Therefore, it cannot be said that the sample produced before the Court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In view of the above reason also, the appellant is entitled to benefit

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of doubt.

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CRL.A.No.191 of 2004

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In the result, this appeal stands allowed, setting aside

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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/-B. SUDHEENDRA KUMAR, JUDGE.

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ani/

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/true copy/

Komalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Komalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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