The High Court acquitted appellants convicted under Section 8(2) of the Abkari Act for possession of arrack. Conviction set aside due to unexplained delay in producing contraband and failure to establish chain of custody via certificate and seal specimen. Released on bail.
Appeals allowed; conviction and sentence set aside; accused acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA,
1944
CRL.A NO. 2176 OF 2008
AGAINST THE JUDGMENT IN SC 251/2006 OF ADDITIONAL
SESSIONS COURT (ADHOC)-II, KOZHIKODE
APPELLANT/S:
GOPALAN
PULIYENCHERI, LAKSHAM VEEDU COLONY,, VIYYUR
AMSOM DESOM.
BY ADV SANTHARAM.P
RESPONDENT/S:
STATE OF KERALA
PROSECUTOR, HIGH COURT OF KERALA,, ERNAKLAM.
BY PUBLIC PROSECUTOR SMT REKHA S.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 02.12.2022, ALONG WITH CRL.A.1970/2008, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
[CRL.A Nos.2176/2008 & 1970/2008]
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA,
1944
CRL.A NO. 1970 OF 2008
AGAINST THE ORDER/JUDGMENTSC 251/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE
APPELLANTS:
1*GOPALAN
S/O KANNAN AGED 74 YEARS
PULIYANCHERRY LAKSHAMVEEDU COLONY
VIYYUR AMSHAM DESOM, KOYILANDY TALUK
KOZHIKODE DISTRICT
2KALLIYANI, D/O.KUNHIKANARAN 78 YEARS
KUNNIYORA MALAYIL, VIYYUR AMSHAM, KOLLAM DESOM,,
KOYILANDY TALUK, KOZHIKODE.
*1ST APPELLANT DELETED FROM PARTY ARRAY AS PER
ORDER DATED 16.09.2022 NIN CRL MA NO.1/2022
BY ADV P.R.SREEJITH
RESPONDENT/S:
STATE OF KERALA
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
By SR PUBLIC PROSECUTOR SMT REKHA S.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2022, ALONG WITH CRL.A.2176/2008, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
[CRL.A Nos.2176/2008 & 1970/2008]
..3..
[CRL.A Nos.2176/2008 & 1970/2008]
JUDGMENT
These two appeals arises from the judgment dated 11.08.2008 in S.C.No.251 of 2006. The appellant in Crl.A.No.2176 of 2008 is accused No.1 and the appellant in Crl.A.No.1970 of 2008 is accused No.2. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rs. One Lakh each.
[CRL.A Nos.2176/2008 & 1970/2008]
the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence
[CRL.A Nos.2176/2008 & 1970/2008]
..5..
(1) Undue delay in the production of the
properties including the sample has not been satisfactorily explained by the prosecution.
(2) Ext.P1 seizure mahazar does not contain the
nature and description of the seal stated to have been affixed on the bottle containing the
sample.
[CRL.A Nos.2176/2008 & 1970/2008]
..6..
(3) Specimen of the seal was not produced
before the Court to ensure the genuineness of the sample.
on the question of delay in production of properties a Division Bench of this Court held thus:
“8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”
In Ravi's case (supra) the Division Bench held that
[CRL.A Nos.2176/2008 & 1970/2008]
production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property.
[CRL.A Nos.2176/2008 & 1970/2008]
mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court.
In the result,
(i) The appeals are allowed ;
(ii) The judgment of conviction and sentence passed against the accused is set aside ;
[CRL.A Nos.2176/2008 & 1970/2008]
..9..
(iii) The accused are acquitted of the offence alleged;
(iv) They are set at liberty.
Sd/-
K. BABU, JUDGE
kkj
2 issues framed by the court
Whether the conviction can be sustained when there is an unexplained delay in producing seized properties and failure to prove chemical analysis due to missing seal details.
Whether the absence of a specimen of the seal on the seizure memo vitiates the evidence of the sample.
Colour shows how this judgement treated each authority
Ravi v. State of KeralaExplained¶61
Ravi v. State of Kerala [2011 (3) KHC 121]
Bhaskaran v. State of KeralaExplained¶69
Bhaskaran v. State of Kerala (2020 KHC 5296)
GOPALAN
KALLIYANI
STATE OF KERALA
K. BABU
As recorded by the court registry
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