Allowed

Ramadas v. State of Kerala

Kerala HC30 Jan 2019CRL.A/957/2006

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellant of possessing arrack under the Kerala Abkari Act. The conviction was set aside due to illegalities, including the investigating officer acting as a witness and failure to prove the seized sample's identity and chain of custody.

What did the court decide?

Appellant acquitted; conviction and sentence set aside; accused released from prosecution.

Ramadas Vs State of Kerala — Cheque Dishonour | 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 P.UBAID

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WEDNESDAY, THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940

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CRL.A.No.957 of 2006

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JUDGMENT IN SC 328/2000 of ADDL. SESSIONS COURT (ADHOC)-I, KOLLAM DATED 21-04-2006

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APPELLANT/ACCUSED :-

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RAMADAS, S/O.PRABHAKARAN, MULLASSERIL VEEDU, PULIKULAM, SOORANAD NORTH, KOLLAM.

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BY ADV. SRI.JOHNSON GOMEZ

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RESPONDENT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTION, HIGH COURT OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, SOORANAD.

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BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.957/2006

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JUDGMENT

The appellant herein challenges the conviction

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and sentence against him under Section 55(a) of the Kerala Abkari Act (the Act) in S.C.328/2000 of the

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Court of Session, Kollam. He faced trial before the learned Additional Sessions Judge (Adhoc)-I, Kollam

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on the allegation that at about 8.30 p.m. on 4.1.1999, he was found possessing 3 litres of arrack in a plastic can of 5 litres capacity. The offence

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was detected by the Sub Inspector of Police, Sooranad. He arrested the accused on the spot, and seized the contraband articles as per a mahazar. On the basis of the arrest and seizure, he registered the crime, and also conducted investigation. The successor Sub Inspector verified the investigation, and submitted final report in court.

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The accused appeared before the learned

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trial Judge, and pleaded not guilty to the charge framed against him. Instead of framing charge under Section 8(2) of the Act, the trial court wrongly

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CRL.A.No.957/2006

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framed charge under Section 55(a) of the Act. The

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prosecution examined five witnesses, and proved Exts.P1 to P5 documents in the trial court. The MO1

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property was also identified during trial. The accused denied the incriminating circumstances, and projected a defence of total denial. He 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 21.4.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find some illegalities in this case, the benefit of which must go to the accused. Of the five witnesses examined in the trial court, PW5 is the Sub Inspector, who detected the offence, and PW3 is the Sub Inspector, who submitted final report in report. PW1 and PW2 examined as independent witnesses turned hostile. PW4 is the Police Constable, who

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CRL.A.No.957/2006

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-: 4 :-

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assisted the Sub Inspector. PW4 and PW5 have given

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evidence regarding the arrest of the accused, and the seizure of a plastic can. When asked about the

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identification details, PW5 stated that no label was affixed by him, and practically, there is nothing to identify the MO1 can produced in court. The question is whether the liquid found in the can seized by the Sub Inspector was identified as arrack.

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This Court has settled that the copy of the

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forwarding note must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Such a forwarding note is not seen proved or produced in this case. PW5 has no case that he had affixed his personal seal on the sample. The mahazar also does not contain the specimen of the seal. Thus there is nothing to identify the sample produced in this case as the sample collected from the possession of the accused. Practically, there is nothing to

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prove that the liquid in the plastic can was

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identified as arrack.

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CRL.A.No.957/2006

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-: 5 :-

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the properties were produced in court only on

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29.01.1999. PW1 has no satisfactory explanation for

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this delay. When asked about it in cross

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examination, he stated that he had promptly produced the properties in court, but he was authorised to keep it in safe custody by the court. There is absolutely nothing to show that he was so authorised. This means that the property was in his unauthorised custody till 29.01.1999. This is an infirmity

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affecting the prosecution case.

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Everything in this case was done by the Sub Inspector. He detected the offence, arrested the accused, registered the crime, and also conducted investigation. In Mohan Lal v. State of Punjab [AIR 2018 SC 3853] the Hon'ble Supreme Court has recently held that the detecting officer, who will have to come to court as a prominent witness to give evidence on factual aspects cannot investigate the case. Investigation conducted by PW5 himself will vitiate the whole prosecution case.

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CRL.A.No.957/2006

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-: 6 :-

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In the result, the appeal is allowed. The

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appellant is found not guilty of the offence under 55(a) of the Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in S.C.No.328/2000 of the court below will stand set aside, and he will stand released from

prosecution.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/ds/2.2.2019

Ramadas v. State of Kerala

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Ramadas v. State of Kerala

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