Allowed

Kumaru v. State of Kerala

Kerala HC28 Nov 2023CRL.A/2113/2007

Case brief

AI extract

What is this about?

In a criminal appeal against conviction and sentence under the Kerala Abkari Act, the High Court allowed the appeal, set aside the conviction, and acquitted the appellant. The Court held that the prosecution failed to establish tamper-proof sampling and analysis link, and the investigating officer lacked statutory powers at the time of the offence.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond cancelled and appellant set at liberty; fine deposited refunded.

Kumaru Vs State of Kerala — Bail and Remand | Kerala HC (2023)

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Crl. Appeal No. 2113/2007

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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 JOHNSON JOHN

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TUESDAY, THE 28^TH DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945

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CRL.A NO. 2113 OF 2007

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AGAINST THE JUDGMENT DATED 24.10.2007 IN SC 712/2003 OF ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA

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APPELLANT/ACCUSED:

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KUMARU, PUTHEN VEEDU, KOPPAYIL DESOM, CHERIYANADU VILLAGE.

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BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY

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THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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SMT. NIMA JACOB, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING:

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Crl. Appeal No. 2113/2007

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JOHNSON JOHN, J.

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--------------------------------------------------------Crl. Appeal No. 2113 of 2007 (D)

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--------------------------------------------------------Dated this the 28^th day of November, 2023.

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JUDGMENT

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The appellant, who is the accused in S.C. No. 712 of 2003 on the file of the Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara, is challenging the conviction and sentence imposed on him for the offence punishable under Section 8(1) and (2) of the Kerala Abkari Act.

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As per the impugned judgment dated 24.10.2007, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of 3½ years and to pay a fine of Rs.1,00,000/- for the offence punishable under Sections 8(1) and (2) of the Kerala Abkari Act.

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The prosecution case is that on 14.12.2001, at 5.30 p.m., the accused was found in possession of 2 litres of arrack in a plastic can at Cheriyanad Panchayat stadium. The offence was detected by the Assistant Excise Inspector of Excise Range Office, Chengannur and after investigation, a final report was filed before the Judicial First Class Magistrate-II, Chengannur. Thereafter, the case was committed to the court of Sessions, Alappuzha and subsequently, made over to the Assistant Sessions Court, Mavelikkara and later transferred to the Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara.

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Crl. Appeal No. 2113/2007

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4. The trial court, after framing charge, examined PWs 1 to 6 and marked Exhibits P1 to P7 and MO1 from the side of the prosecution and from the side of the defence, DW1 was examined.

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After trial and after hearing both sides, the learned Additional Sessions Judge, found the accused guilty of the offence punishable under Section 8(1) r/w Section 8(2) of the Kerala Abkari Act and imposed the sentence as aforesaid.

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Heard Sri. C.A. Rajeev, the learned counsel for the appellant and the learned Public Prosecutor, Smt. Nima Jacob.

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The learned counsel for the appellant pointed out that the detecting officer has not affixed the specimen impression of the seal used in the contemporaneous mahazar and the specimen impression of the seal is also not seen affixed in Exhibit P5 property list. In the case at hand, the prosecution has also not marked the copy of the forwarding note and there is no material before court to show when and how the sample was forwarded to the chemical laboratory.

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A perusal of Exhibit P7 certificate of chemical analysis shows that the sample forwarded, as per letter No. T.224/01 dated 23.01.2002 from the Judicial First Class Magistrate -II, Chengannur, reached the Chemical Examiner’s Laboratory at Thiruvananthapuram only on 24.01.2002 and the prosecution has not examined the Thondi Clerk of the Court or the Excise Guard with whom the sample was sent for chemical analysis to establish the link evidence as to whether the sample despatched by the Thondi clerk has reached the Chemical

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Crl. Appeal No. 2113/2007

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Examiner in a tamper free manner.

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This Court has also held in Sasidharan v. State of Kerala [2007(1) KLT 720] that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition, unless the link evidence of actual sampling and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellant.

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The learned counsel for the appellant also cited the decision in Sasidharan v. State of Kerala [2012(2) KLT 392], wherein it is held that an Assistant Excise Inspector is not an empowered officer for the purposes of the Act and the notification, S.R.O. No. 361/2009 dated 8.5.2009, cannot be resorted to in respect of a case wherein the alleged occurrence was much prior to the notification. In this case, the alleged occurrence was on 14.12.2001 and admittedly, the offence was detected by the Assistant Excise Inspector of the Excise Range Office, Chengannur and therefore, it can be seen that PW1, Assistant Excise Inspector, was not empowered to exercise the powers under Sections 40 to 53 of the Act as on the date of occurrence in this case and that notification dated 08.05.2009 cannot come to the rescue of the prosecution.

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On an evaluation of the available evidence, it is also found

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Crl. Appeal No. 2113/2007

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that the mandates necessary to ensure tamper proof collection of samples of the alleged contraband and its examination without tampering is not established by the prosecution beyond reasonable doubt. Therefore, the accused/ appellant herein is entitled to the benefit of doubt and as such, the conviction and sentence imposed by the trial court is liable to be set aside.

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In the result, the appeal is allowed and the conviction and sentence imposed by the trial court against the appellant/accused are set aside and he is acquitted of the offence punishable under Sections 8(1) and (2) of the Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled and he is set at liberty forthwith. The amount, if any being part of the fine amount deposited by the appellant/accused by order of this Court, shall be refunded to him.

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sd/- JOHNSON JOHN, JUDGE.

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Kumaru v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kumaru v. State of Kerala

Case brief

What is this about?

What did the court decide?

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