The High Court allowed a criminal revision petition where the conviction for possession of unlicensed arms was set aside because the prosecution failed to seal seized evidence and failed to prove the survey and sanction order corresponding to the charge.
Revision petition allowed; accused acquitted; bail bond cancelled; accused set at liberty.
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 N.ANIL KUMAR
WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
Crl.Rev.Pet.No.677 OF 2013
AGAINST THE JUDGMENT IN CRL.APPEAL NO.314/2010 DATED 18-12-2012 OF ADDITIONAL SESSIONS COURT (ADHOC I), KASARAGOD
AGAINST THE JUDGMENT IN CC NO.1257/2005 DATED 15-10-2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,HOSDRUG
REVISION PETITIONER/APPELLANT/ACCUSED:
K.VINOD @ VINU AGED 32 YEARS S/O KANATHIL BALAN, RESIDING AT KANATHIL HOUSE, BELUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT
BY ADV. SRI.T.K.VIPINDAS
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.677 OF 2013
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ORDER
Dated this the 6th day of January 2021
The revision petitioner was the accused in CC No.1257 of 2005 on the file of the Judicial First Class Magistrate Court-1, Hosdurg and the appellant in Crl.Appeal No.314 of 2010 on the file of the Additional Sessions Court (Adhoc I), Kozhikode. The offence alleged against the accused is punishable under Section 3 r/w 25(1-B)(a) of the Arms Act, 1959.
Crl.Rev.Pet.No.677 OF 2013
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evidence against him. However, no defence evidence was adduced.
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default of payment of fine to undergo rigorous imprisonment for six months more. The accused was found not guilty for the offence under Section 9(B)(b) of the Explosives Act, 1884 and accordingly, he was acquitted thereunder.
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by the police they were not sealed. Thus, the identity of the weapon and other materials produced before the court was not established by the prosecution. On going through the evidence of PWs 1 to 10, it is clear that the contention raised on behalf of the accused is correct. The detecting officer has no case that he had sealed the gun immediately after seizure in accordance with law. The impact of non-sealing of the weapon allegedly seized by the detecting officer was considered by the Apex Court in Jasbir Singh v. State of Punjab (1998 KHC 1535). In Jasbir Singh 's case (supra), it was held that the identity of the incriminating article alleged to have been seized by the detecting officer should be established by the prosecution beyond doubt. In the case on hand, the pistol alleged to have been recovered from the accused did not have any number or some distinctive mark on it after its seizure by the police and it was not sealed as well. The dictum laid down in Jasbir Singh 's case (supra) was followed by this Court in Damodaran v. State of Kerala (2016 KHC 192).
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Collector according sanction to prosecute the offender was not proved in accordance with law. It is further contended that Ext.P8 would indicate that the seizure was allegedly made from the residence of the accused. However, the charge framed in this case would indicate that the material objects were seized from the custody of the accused at the mud road. The mud road has no connection whatsoever with the residence of the accused. Ext.P3 scene mahazar is also against the contents in Ext.P8 sanction order. It is true that, the authorized officer was not examined to prove Ext.P8 before the trial court. Ext.P8 sanction order was issued in respect of an illegal act alleged to have committed some where else. It has no connection whatsoever with the place of occurrence involved in this case. Hence, this Court has no hesitation to hold that Ext.P8 has not been proved in evidence.
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In the result, the revision petition is allowed. The revision petitioner/accused is found not guilty for the offence under Section 3 r/w 25(1-B)(a) of the Arms Act, 1959 and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. During the pendency of the revision if any fine amount has been deposited by the accused before the trial court pursuant to the direction of this Court, the same shall be refunded to the revision petitioner/accused, in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE
dlk/06.01.2021
2 issues framed by the court
Whether the failure of the prosecution to seal seized weapon and material objects renders the evidence insufficient to prove identity and support conviction.
Whether the sanction order (Ext.P8) was properly proved in evidence when it surveyed a location different from the place of occurrence.
Colour shows how this judgement treated each authority
Jasbir Singh v. State of PunjabFollowed¶31
Jasbir Singh v. State of Punjab (1998 KHC 1535)
Damodaran v. State of KeralaFollowed¶31
Damodaran v. State of Kerala (2016 KHC 192)
2 provisions across 2 enactments
K.VINOD @ VINU
STATE OF KERALA
N.ANIL KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
