The High Court acquitted the appellant of an offence under the Kerala Abkari Act for possessing arrack. The appeal against conviction and sentence was allowed due to serious infirmities in the evidence and lack of proof identifying the liquid as contraband.
Appellant acquitted under Section 386(b)(i) Cr.P.C.; conviction and sentence set aside; appeal discharged.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940
CRL.A.No. 202 of 2007
AGAINST THE JUDGMENT IN SC 940/2001 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC)-I, KOLLAM DATED 08-01-2007
APPELLANT/ACCUSED :
SURESH, S/O. PARAMESWARAN, CHAKKALAYIL, VADAKKETHIL, MARUTHURKULANGARA VADAKKUMURI, KULSEKHARAPURAM VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT.
BY ADV. SRI.B.MOHANLAL
RESPONDENT/COMPLAINANT :
STATE OF KERALA, REPRESENTED BY THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI SANTHOSH PETER-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No. 202 of 2007
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JUDGMENT
The appellant herein challenges the conviction and sentence against him under section 55(a) of the Kerala Abkari Act (“the Act”) in S.C.No.940 of 2001 of the Court of Session, Kollam.
CRL.A.No. 202 of 2007
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witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 property was also identified during trial. The accused did not adduce any evidence in defence. 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.1,00,000/-. Aggrieved by the judgment of conviction dated 08.01.2007, the accused has come up in appeal.
CRL.A.No. 202 of 2007
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contain the required details. Anyway, he cryptically stated about the arrest of the accused, and the seizure of the MO1 can from his possession. The crucial question is whether the liquid involved in this case, allegedly contained in the MO1 can was identified as arrack as the prosecution would allege. This Court has settled that the copy of the forwarding note produced in Court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. No such forwarding note is seen produced or proved in this case. PW3 has not stated anything about the seal affixed on the sample. The detection mahazar does not show what seal was affixed on the sample. The detecting officer is expected to affix his personal seal on the sample for proper identification later. There is absolutely nothing to identify the sample produced in this Court, or sent for analysis, as the sample collected from the possession of the accused. In short, there is nothing to prove that the liquid contained in the MO1 can was identified as arrack.
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where it was collected, or who authorised collection of sample, if it is not collected by the detecting officer. There is nothing to show that the sample produced in this case was taken from the liquid contained in the MO1 plastic can. The person who took sample is not seen examined, whoever it is. In the absence of anything to prove that the liquid involved in this case is identified as arrack, the accused cannot be convicted.
In the result, this Appeal is allowed. The appellant herein is not found guilty of the offence under Section 55(a) of the Kerala Abkari Act, and accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C.No.940 of 2001 of the court below will stand set aside. The accused will stand released from prosecution, and the bail bond, if any, executed by him will stand discharged. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence will be released.
Sd/-
P.UBAID JUDGE
rkj
2 issues framed by the court
Whether the accused could be convicted for possessing arrack without proper identification of the sample seized.
Whether the absence of proof regarding the collection and identification of the liquid sample warrants acquittal.
2 provisions across 2 enactments
SURESH, S/O. PARAMESWARAN
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
