The High Court set aside the conviction and sentence under the Abkari Act due to an unexplained five-day delay in producing contraband and a sample, breaking the chain of evidence linking the appellant to the seized items.
Conviction and sentence set aside; appellant acquitted; bail bond discharged.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941
CRL.A.No.254 of 2005
AGAINST THE ORDER/JUDGMENT IN SC 243/2002 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 10-01-2005
AGAINST THE ORDER/JUDGMENT IN CP 61/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM
APPELLANT/S:
SANTHAMMA
W/O SALI, THANNIMALA VEEDU, PRAKKANDAM BHAGOM, PAMPADUMPARA KARA, PAMPADUMPARA VILLAGE.
BY ADV. SRI.C.K.VIDYASAGAR ADV.SRI.SIRAJ ABDUL SALAM, AMICUS CURIAE
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.E.C.BINEESH,PP AND
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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JUDGMENT
The appellant was convicted and sentenced by the court below under Sections 55(b), 55(g) and 8(2) of the Abkari Act.
2. The prosecution allegation is that on
24.11.99 at about 1.00 p.m., the appellant
was found in possession of wash and other materials for the purpose of manufacturing
arrack and six litres of arrack, in
contravention of the provisions of the Abkari Act.
3. Since there is no representation for the appellant, this Court has appointed Adv.Sri.Siraj Abdul Salam as Amicus Curiae to argue the case for the appellant.
CRL.A.No.254 of 2005
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4. Heard the learned Amicus Curiae and
the learned Public Prosecutor.
5. The learned Amicus Curiae has argued that since there was unexplained delay in producing the contraband and the sample before the court, the appellant is entitled to benefit of doubt.
6. Ext.P6 is the property list, which would show that the contraband and the sample were produced before the court on 29.11.99. PW2 stated that he produced the contraband and the sample before the court. PW2 further stated that the sample and the contraband were produced before the court by him only on 29.11.99. PW2 stated that all records relating to the case were
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transmitted to Vandanmedu Police Station on 25.11.99 as the place of occurrence in this case was within the jurisdiction of that Police Station. However, he did not transmit the material objects and the sample along with the records to the Vandanmedu Police Station. Instead of handing over the material objects and the sample to the Vandanmedu Police Station, he himself produced the material objects before the court on 29.11.99. It is clear that when PW2 produced the material objects and the sample before the court on 29.11.99, PW2 was not having any jurisdiction in the matter as the crime was re-registered in Vandanmedu Police Station in respect of the incident in
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this case. PW2 also did not state any reason as to why there was delay in producing the contraband and the sample before the court. The delay as such is not always material. However, unexplained delay is, no doubt, fatal to the prosecution.
7. In this case, there was unexplained delay from 24.11.99 to 29.11.99 in producing the contraband and the sample before the court. Since there was unexplained delay of five days in producing the sample 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. In the said circumstances, there is no link evidence connecting the appellant with the
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sample anlaysed in the laboratory. In the said circumstances, the conviction and sentence passed by the court below relying on Ext.P9 certificate of chemical analysis, cannot be sustained and consequently, I set aside the same.
In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.
Sd/-
B. SUDHEENDRA KUMAR,
STK
//TRUE COPY//
//P.A. TO JUDGE//
1 issue framed by the court
Whether the unexplained delay of five days in producing the contraband and sample before the court vitiates the prosecution evidence.
1 provisions across 1 enactments
SANTHAMMA
STATE OF KERALA
B. SUDHEENDRA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
