Allowed

Mathew @ Thankachan v. State of Kerala

Kerala HC6 Aug 2019CRL.A/620/2007

Case brief

AI extract

What is this about?

In an appeal against conviction for illegal possession of arrack, the High Court of Kerala held that the prosecution failed to establish a tamper-proof chain of custody due to the absence of a forwarding note and an unexplained delay in producing samples. The Court allowed the appeal and acquitted the appellant.

What did the court decide?

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

Mathew @ Thankachan Vs State of Kerala — Writ and Judicial Review | 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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TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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CRL.A.No.620 OF 2007

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AGAINST THE JUDGMENT IN SC 2064/2002 DATED 20-03-2007 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA

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AGAINST THE JUDGMENT IN CP 152/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR

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APPELLANT/S:

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MATHEW @ THANKACHAN

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S/O. VARGHESE, CHARUVILA VEEDU, VADAKODU, ARINGADA MURI,, THALAVOOR VILLAGE.

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BY ADV. SRI.ALEXANDER GEORGE

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RESPONDENT/S:

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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, KUNNICODU POLICE STATION, KOLLAM DISTRICT

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OTHER PRESENT:

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SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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-: 2 :-

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CRL.A.No.620 OF 2007

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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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2 The prosecution allegation is that on 11-6-2000 at about 5.30 p.m., the appellant was found in possession of 5 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 that since no forwarding note was produced and marked before the court, the appellant is entitled to benefit of doubt.

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It appears that Ext. P6 was marked as the forwarding note. However, the records would show that Ext. P6 is not the forwarding note. No forwarding note is seen in the records transmitted to this Court. It appears that no forwarding note was produced and marked before the Court. Therefore, it has to be held that

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-: 3 :-

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CRL.A.No.620 OF 2007

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the prosecution could not establish the tamper-proof despatch of the sample to the Laboratory. Therefore, 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 no forwarding note was produced and marked before the court, there is no link evidence connecting the appellant with the sample analysed in the Laboratory. In the said circumstances, the conviction and sentence passed by the court below relying on Ext. P5 certificate of chemical analysis cannot be sustained.

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It is also to be noted that eventhough the incident in this case was on 11-6-2000, the contraband and the sample were produced before the Court only on 14-6-2000. PW4 produced the contraband and the sample before the Court. PW4 stated that the contraband and the sample were produced before the court on 14-6-2000. Ext. P4 property list would also show that the contraband and the sample were produced before the Court only on 14-6-2000. The delay as such is not always fatal to the prosecution case. However, the unexplained delay is, no doubt, fatal to the prosecution

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-: 4 :-

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CRL.A.No.620 OF 2007

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case. In this case, no explanation was given by PW4 for the delayed production of the contraband and the sample before the court. Since there was unexplained delay from 11-6-2000 to 14-6-2000 in producing the contraband and 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 also, the appellant is entitled to benefit of doubt.

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In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by 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/

Mathew @ Thankachan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mathew @ Thankachan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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