Allowed

Sunny v. State of Kerala

Kerala HC21 Jun 2019CRL.A/2384/2008

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction and sentence under the Abkari Act for possessing arrack. The High Court found significant delays in producing the sample and filing the final report, along with gaps in evidence regarding safe custody. Relying on Krishnan H. v. State, the court held these unexplained delays entitled the appellant to benefit of doubt.

What did the court decide?

Appellant acquitted; conviction and sentence set aside; bail bond discharged.

Sunny 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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FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941

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CRL.A.No.2384 of 2008

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AGAINST THE ORDER/JUDGMENT IN SC 573/2007 of SPECIAL COURT (NDPS ACT CASES), THODUPUZHA DATED 25-09-2008

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APPELLANT/S:

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SUNNY

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S/O THOMAS, KOTTAPPURATHU HOUSE, ANYARTHOLU KARA, PAMPADUMPARA VILLAGE.

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BY ADVS. SRI.BYJU KURIAKOSE SRI.GEORGE SEBASTIAN

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RESPONDENT/S:

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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.C.S.HRITHWIK,PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Case No. Crl.A.2384/08

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JUDGMENT

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The appellant was convicted and sentenced by the

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court below under Section 8(2) of the Abkari Act.

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The prosecution allegation is that on 07.06.2003 at about 12.40 p.m., the petitioner was found in possession

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of 10 litres of arrack in contravention of the provisions of the Abkari Act.

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Heard.

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The learned Counsel for the appellant has argued

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that there was inordinate delay in producing the contraband

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and the sample before the court and in the said circumstances, the appellant is entitled to the benefit of doubt. The learned Counsel for the appellant has further argued that there was also inordinate delay in conducting

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the investigation and filing the final report before the court

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Case No. Crl.A.2384/08

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and in the said circumstances also, the appellant is entitled

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to the benefit of doubt. The learned Counsel has relied on

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the decision of this Court in Krishnan H. v. State [2015 (1)

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KHC 822].

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It appears that the incident in this case was on 07.06.2003. However, the sample was seen produced before the court only on 9.6.2003. PW4 produced the contraband and the sample before the court. PW4 stated

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that the accused was produced before the learned Magistrate at his residence and hence, even though the contraband and the sample were produced along with the accused, the learned Magistrate did not receive the same. However, the remand report would show that the accused

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was produced before the learned Magistrate at 4.15 p.m. on 07.06.2003. It further appears from the remand report that

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the seal of the court was also affixed on the remand report on 7.6.2003 itself. Ext.P6 property list also does not contain any endorsement to the effect that the contraband and sample were produced before the learned Magistrate along with the appellant on 7.6.2003. Thus, it appears that the evidence of PW4 that the appellant was produced before the learned Magistrate at his residence, cannot be correct. The evidence of PW4 is also silent with regard to the safe custody of the sample and the contraband till their production before the court. Since there was unexplained delay from 7.6.2003 to 9.6.2003 in producing the sample and the contraband before the court, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly when

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Case No. Crl.A.2384/08

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there is no evidence with regard to the safe custody of the contraband and the sample till their production before the court. In the said circumstances, the appellant is entitled to benefit of doubt.

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It is also to be noted that even though the incident in this case was on 7.6.2003, the final report was filed before the court only on 30.4.2007, after completing the investigation. This court in Krishnan H. (supra) held that the long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, there was a delay of more than three years and ten months in conducting the investigation and filing the final report before the court. No explanation was given by the prosecution as to whey there was inordinate delay in conducting the investigation and filing

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the final report before the court. For the said reason also, the appellant is entitled to benefit of doubt.

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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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B. SUDHEENDRA KUMAR, JUDGE .

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dl/

Sunny v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sunny v. State of Kerala

Case brief

What is this about?

What did the court decide?

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