Allowed

Reji v. State of Kerala

Kerala HC8 Jul 2019CRL.A/2828/2008

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction under Section 55(a) of the Abkari Act for possession of Indian made foreign liquor. The High Court held that the delay in producing seized sample contraband and the absence of a sample seal on the forwarding note prevented proving tamper-proof despatch, severing the link to the accused. Consequently, the conviction was set aside and the appellant was ac

What did the court decide?

Conviction and sentence set aside and appellant acquitted; bail bond discharged.

Reji Vs State of Kerala — Criminal Trial and Appeal | 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 B.SUDHEENDRA KUMAR

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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CRL.A.No.2828 of 2008

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AGAINST THE ORDER/JUDGMENT IN SC 143/2006 of ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA

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APPELLANT/ACCUSED:

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REJI AGED 35 YEARS, S/O CHACKO, ODAKUZHIKAL VEEDU, 12TH MILE, MAKIADU, PURINJHI COLONY, MANANTHAVADY.

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BY ADV. SRI.ELDHO PAUL

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RESPONDENTS/COMPLAINANT:

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

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2 THE SUB INSPECTOR VELLAMUNDA POLICE STATION, WAYANAD DISTRICT.

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SRI.E.C.BINEESH,PUBLIC PROSECUTOR SRI.ALEX M.SCARIA, AMICUS CURIAE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No.2828 of 2008

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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 55(a) of the Abkari Act.

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The prosecution allegation is that on 06.11.2004 at 6.30 a.m., the appellant was found in possession of 1.5 liters of Indian made foreign liquor, in contravention of the provisions of the Abkari Act. It is alleged that the appellant was found in possession of 4 bottles, each bottle having a capacity of 375 ml each, containing the label, “for sale in Pondicherry only”.

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Since there is no representation for the appellant, this Court has appointed Adv.Alex M.Scaria as Amicus Curiae to argue the case for the appellant. Heard the learned Amicus Curiae and the learned

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Public Prosecutor.

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CRL.A.No.2828 of 2008

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The learned Amicus Curiae has argued that

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even though the incident in this case was on 06.11.2004, the sample and the contraband were produced before the court only on 17.11.2004 and in the said circumstances, the appellant is entitled to benefit of doubt.

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Ext.P4 is the property list, which would show that the contraband and the sample were produced before the court only on 17.11.2004, even though the detention was on 06.11.2004. PW1 produced the contraband and the sample before the court. PW1 stated that the contraband and the sample were produced before the court on 17.11.2004. PW1 further stated that he was having other official engagements and hence there occurred delay in producing the sample and the contraband before the court. The said explanation given by PW1 cannot be

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CRL.A.No.2828 of 2008

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said to be a plausible and sufficient explanation to justify the long delay from 06.11.2004 to 17.11.2004 in producing the contraband and the sample before the court. Since there was no satisfactory explanation

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for the long delay 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. Therefore, there is no link evidence to connect the appellant with the sample analysed in the laboratory.

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It is also to be noted that the forwarding note sent by the Sub Inspector of Police, Vamanapuram Police Station to the court below did not contain the sample seal at the space provided for the same. This Court in Krishnan H v. State of Kerala [2015 (1) KHC 822] held that the absence of sample

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CRL.A.No.2828 of 2008

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seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided on the original forwarding note. In this case, Ext.P5 copy of the forwarding note does not contain the sample seal at the space provided for the same. No evidence was also adduced by the prosecution to show that the sample seal was provided on the original forwarding note. Therefore, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances also, 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. Since the tamper-proof despatch of the sample to the laboratory could not be established, there is no link evidence to connect the appellant with the

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-6-

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CRL.A.No.2828 of 2008

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sample analysed in the laboratory. In the said circumstances, the conviction and sentence passed by the court below, relying on Ext.P6 certificate of chemical analysis, cannot be sustained and consequently, I set aside the same.

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In the result, this criminal 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.

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Sd/-

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B.SUDHEENDRA KUMAR

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JUDGE

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Nkr/08.07.19

Reji v. State of Kerala

Case brief

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What did the court decide?

Reji v. State of Kerala

Case brief

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What did the court decide?

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