Allowed

Shaji v. State of Kerala

Kerala HC6 Jan 2021CRL.A/2354/2006

Case brief

AI extract

What is this about?

In a criminal appeal under the Kerala Abkari Act, the High Court allowed the appeal, quashed the conviction, and set the appellant at liberty due to two fatal infirmities: the arresting officer lacked competence to register the crime, and the chemical forwarding note lacked the mandatory sample seal.

What did the court decide?

The conviction and sentence were set aside, the accused was set at liberty, the bail bond was cancelled, and the fine was refunded.

Shaji Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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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 BECHU KURIAN THOMAS

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WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

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CRL.A.No.2354 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 457/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA

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AGAINST THE ORDER/JUDGMENT IN CP 16/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA

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APPELLANT/S:

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SHAJI AGED 37 YEARS S/O.SREEDHARAN,KONNI HARISON MALAYALAM PLANTATION EAST, DIVISION NO.79, LAYEM, ARUVAPPULAM VILLAGE,, KOZHENCHERRY TALUK.

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BY ADV. SRI.C.B.SREEKUMAR

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RESPONDENT/S:

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

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R1 BY PUBLIC PROSECUTOR

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MAYA M N GP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2354 OF 2006

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JUDGMENT

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Dated this the 6th day of January 2021

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The appellant challenges the conviction and sentence imposed by judgment dated 17.11.2006 in SC No.457/2005 on files of the Additional District and Sessions (Ad-hoc) Fast Track Court-III, Pathanamthitta.

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By the impugned judgment, the accused was found guilty for the offence under Section 8(1) of the Kerala Abkari Act (For short the Act) and was sentenced to undergo simple imprisonment for one year and to pay of a fine of Rs.One lakh and in default, to undergo simple imprisonment for three months for the offence as mentioned above.

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The prosecution case is that on 09.07.2003 at 5.30 p.m the accused was found in possession of 20 liters of arrack in a plastic can, thereby committing the offence under Section

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8(1) and (2) and Section 55 (a) of the Act. The offence was

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CRL.A.No.2354 OF 2006

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detected by the Assistant Excise Inspector, Konni.

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Pursuant to the final report alleging the commission

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of offences as stated above, the case was committed to the court of Session. In order to prove the prosecution case PWs 1 to 4 were examined and Exts.P1 to P10 were marked. The can containing the arrack was marked as MO1. After analyisng the prosecution case, the learned Sessions Judge found the accused guilty of the offence under Section 8(1) of the Act and imposed sentence of imprisonment and fine as mentioned earlier.

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Challenging the conviction and sentence, this appeal has been preferred.

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I have heard the learned counsel for the appellant and the learned Public Prosecutor.

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On a perusal of the records of the case, it is seen that the prosecution case suffers from two main infirmities. The first infirmity is that the crime was detected by the Assistant Excise Inspector. He was not a competent Officer under the Abkari Act in 2003 to register a crime under the Abkari Act.

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CRL.A.No.2354 OF 2006

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Only the Abkari Inspectors were authorised to register a crime under the Act.

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The second infirmity is that Ext.P7 is the original of the requisition/forwarding note by which the sample taken from MO1 was forwarded to the chemical examiner. It has been held by this Court repeatedly, that absence of seal in the forwarding note is fatal to the prosecution case. [Refer to Balachandran Vs. State of Kerala (2020 (4) KLT 137) and Sajeevan Vs. State of Kerala (2020 (6) KLT 53)] . In the absence of the sample seal on the forwarding note, the sample taken from the contraband seized could not be treated as the one that was sent for analysis to the Forensic Laboratory. In the absence of sample seal in the space provided in the forwarding note, the sanctity and veracity of the sample sent for analysis would be under doubt. In such circumstances, it has been held that the benefit of doubt must be given to the accused.

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Since the Officer who detected and registered the

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CRL.A.No.2354 OF 2006

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crime was not a competent Officer under the Abkari Act and also since the sample seal was not affixed on the forwarding note (Ext.P7), the prosecution case has no legs to stand and accordingly, the accused is entitled to be acquitted.

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In view of the above, the conviction and sentence imposed upon the accused in SC No.457/2005 on the files of the Additional District and Sessions (Ad-hoc) Fast Track Court-III, Pathanamthitta) is set aside and the accused is set at liberty. The bail bond furnished by the accused shall stand cancelled and the fine amount if any remitted shall be refunded to the accused.

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The appeal is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS

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JUDGE

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Shaji v. State of Kerala

Case brief

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Shaji v. State of Kerala

Case brief

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