Appeal against conviction for offences under Abkari Act. Court found serious procedural discrepancies in arrest memo crime number, delayed chemical sample dispatch, and improper sealing. Held these doubts warranted acquittal.
Accused acquitted and set at liberty; bail bonds cancelled; fine deposit amount directed to be returned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
CRL.A.No.1177 OF 2006
AGAINST THE JUDGMENT IN SC.NO.4/2003 DATED 09-05-2006 OF ADDITIONAL DISTRICT COURT (ADHOC-III), KASARAGODE
CP 391/2001 DATED 23-10-2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD
APPELLANT/ACCUSED:
M.KESAVAN AGED 25 YEARS S/O.GOVINDA NAIK, MALLAMPARA, ADOOR VILLAGE.
BY ADV. SRI.I.V.PRAMOD
RESPONDENT/COMPLAINANT:
STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.SYLAJA.S.L, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1177 OF 2006
2
JUDGMENT
Dated this the 12th day of March 2021
The accused in SC.No.4/2003 on the file of Additional Sessions
Court, Adhoc-III, Kasargode has filed this appeal being aggrieved by the judgment dated 09.05.2006 whereby he was found guilty of offence under section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo simple imprisonment for a further period of six months.
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CRL.A.No.1177 OF 2006
serious discrepancies in the prosecution case and that on the basis of the evidence on record, the appellant cannot be convicted. It is pointed out that Ext.P1 which is the arrest memo bears the crime number. The counsel pointed out that it is impossible to put the crime number in the arrest memo since at the time of effecting the arrest, no crime had been registered. Reliance is placed on the judgment of this court in Rafeeque C.M v. Sub Inspector of Police [2020 (4) KLT 188] wherein this Court has held that the presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the inferences, the First Information Report was recorded prior to the alleged recovery of the contraband articles or the crime number of the FIR was inserted in the arrest memo after its registration. This court further held that in both these situations, it seriously reflects on the veracity of the prosecution case regarding the incident and creates doubt about the recovery of the contraband in the manner alleged by the prosecution. I find considerable force in the above said contention raised by the counsel for the appellant.
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CRL.A.No.1177 OF 2006
17.11.2001. Even though, the date of preparation of the forwarding note is shown in Ext.P5, no date is written below the initial of the Judicial First Class Magistrate so as to indicate when the sample was dispatched to the chemical examiner for examination. There is also no date which indicates the actual dispatch of the samples except for an entry “15.12.2001”. The report of the Chemical Examiner which is produced and marked as Ext.P6 adds to the confusion. The document would show that the sample was received along with a letter dated 17.11.2001 but it has been received only on 27.12.2001 by the examiner, one month and ten days after the dispatch. There is absolutely no explanation for this delay in the sample reaching the examiner which leads to a serious doubt regarding the question whether the sample had reached the examiner in a tamper proof condition and the sample reached or examination was the very same sample taken at the scene of occurrence. (See Viswanadhan v. State of Kerala 2016(3) KHC 38 ). The seal which is put on the forwarding note does not appear to be the specimen seal used for sealing the sample which is sent to the chemical examiner. The property list which is produced as Ext.P4 would show that the contraband articles which were produced before the Court were returned to the Sub Inspector for safe custody on 21.11.2001. The
CRL.A.No.1177 OF 2006
5
effect of the above discrepancies creates a serious doubt regarding the manner in which the contraband was seized and the manner in which it was kept in safe custody along with the samples and sent for chemical examination in tamper proof condition and there is no proper explanation from the prosecution for the above discrepancies. The appellant is entitled to the benefit of doubt.
In the result, the judgment dated 09.05.2006 in SC.No.4/2003 on the file of the Additional Sessions Court, Adhoc-III, Kasargod is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. It is seen from the order dated 22.06.2006 that this court at the time of suspending the sentence had directed the appellant to deposit a sum of Rs.25,000/- before the Court below. The court below shall return the above said amount to the appellant on proper application. The appeal stands allowed.
Sd/-
T.R.RAVI
JUDGE
Sn
3 issues framed by the court
Whether serious discrepancies in arrest memo and forwarding note create doubt regarding recovery and safe custody of contraband warranting acquittal
Whether the delay in sample dispatch to chemical examiner and lack of tamper-proof sealing justifies setting aside conviction
Whether the appellant is entitled to benefit of doubt based on irregularities in prosecution evidence
Colour shows how this judgement treated each authority
Rafeeque C.M v. Sub Inspector of PoliceRelied on¶26
Rafeeque C.M v. Sub Inspector of Police [2020 (4) KLT 188]
Viswanadhan v. State of KeralaReferred¶30
Viswanadhan v. State of Kerala 2016(3) KHC 38
1 provisions across 1 enactments
M.Kesavan
State of Kerala
T.R.Ravi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
T.R.Ravi
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