Allowed

Chandran v. State of Kerala

Kerala HC28 Nov 2023CRL.A/2116/2007

Case brief

AI extract

What is this about?

In a criminal appeal against conviction under the Kerala Abkari Act for illicit arrack possession, the High Court of Kerala held that the prosecution failed to prove tamper-proof sample dispatch. Citing precedents, the Court found fatal defects like missing seal impressions and unexamined dispatch clerks, leading to acquittal.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of offences under Sections 8(1) and (2) of the Abkari Act; bail bond cancelled; liberty forthwith.

Chandran Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

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Crl. Appeal No. 2116/2007

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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. 2116 OF 2007

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AGAINST THE JUDGMENT DATED 15.10.2007 IN SC 856/2003 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA

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APPELLANT/ACCUSED:

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CHANDRAN, MURAMBIL VEEDU, BUDHANOOR EAST MURI, BUDHANOOR VILLAGE,, CHENGANNUR.

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BY ADVS.

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SRI.JOHN BRITTO SRI.C.A.RAJEEV

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY 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. 2116/2007

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JOHNSON JOHN, J.

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--------------------------------------------------------Crl. Appeal No. 2116 of 2007

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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. 856 of 2003 on the file of Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara, is challenging the conviction and sentence imposed on him for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act.

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As per the impugned judgment dated 15.10.2007, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of one year 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 17.12.1999, at 12.10. p.m., the accused was found in possession of 500 ml. of illicit arrack in a plastic can on the side of the road at Budhanoor Kurisummoodu junction.

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The offence was detected by the Excise Inspector and party while on patrol duty and after completing investigation, a final report was filed before Judicial First Class Magistrate-II,

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Crl. Appeal No. 2116/2007 : 3 :

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Chengannur. Thereafter, the case was committed to the Court of Sessions, Alappuzha and subsequently made over to the Assistant Sessions Court, Mavelikkara. Thereafter, it was transferred to the Fast Track Court, Mavelikkara.

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The trial court, after framing charge, examined PWs 1 to 6 and marked MOs 1 and 2 from the side of prosecution and no evidence was adduced from the side of the accused.

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

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

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The learned counsel for the appellant submitted that PW2, the Excise Inspector who detected the offence and prepared Exhibit P1 mahazar, failed to affix the specimen impression of the sample seal in the mahazar and further there is also nothing in the mahazar to disclose the nature of the sample seal used by him to seal the samples drawn from the contraband alleged to have recovered. It is further pointed out that even though, the properties are mentioned as item Nos. 1 to 3 in

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Crl. Appeal No. 2116/2007

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Exhibit P4 occurrence report, it is not stated that the said items are sealed. In Exhibit P5 property list also, nothing is mentioned to show that item Nos. 1 to 3 produced before court on 20.12.1999 are in a sealed condition and no specimen seal impression is there in Exhibit P5.

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The learned counsel for the appellant also pointed out that as per Exhibit P1 mahazar, the glass recovered is that of 150 ml. capacity; but, as per Exhibits P4 and P5, the glass recovered is that of 200 ml. capacity. A perusal of the evidence of PW5 in cross examination shows that the glass which he recovered is that of 180 ml. capacity.

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The learned counsel for the appellant pointed out that the prosecution has not produced or marked a copy of the forwarding note and that Exhibit P7 certificate of chemical analysis will show that the date on which the sample was forwarded from the court is not there in the certificate and the certificate only shows that the sample was received in the laboratory on 04.01.2000. It is also pointed out that even though Exhibit P5 property list is seen prepared on 17.12.1999, the court seal will show that the same reached the court only on 20.12.1999 and no explanation is forthcoming from the side of

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Crl. Appeal No. 2116/2007 : 5 :

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prosecution regarding the said delay.

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In Sasidharan v. State of Kerala [2007(1) KLT 720], this Court held 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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It is well settled that the detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample; the nature of the seal used is required to be mentioned in the seizure mahazar; and it is also required to produce the specimen impression of the seal in the court.

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In Kumaran v. State of Kerala [2016(4) KLT 718], this Court has held that when the space meant for writing the name of the Excise Guard/Police Officer with whom the sample was sent, is remaining vacant in the forwarding note, the prosecution has to to examine the thondy clerk of the court or

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the Excise Guard concerned, to prove the tamper-proof despatch of the sample to the laboratory and in the absence of such examination, the accused will be entitled for the benefit of doubt.

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The absence of the specimen seal impression in the mahazar and not marking the copy of the forwarding note to prove the nature of sample seal used, not proving the identity of the person with whom the sample was sent for chemical analysis, non examination of the thondy clerk, who despatched the sample or the Excise Guard who took sample to the chemical laboratory, are serious latches which are fatal to the prosecution.

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On examination of the evidence available, it is found that the prosecution has failed to comply the mandates necessary to ensure tamper-proof collection of sample from the alleged contraband and also to adduce reliable evidence to establish 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. Therefore, it is found that the appellant/accused is entitled to the benefit of doubt and as such the conviction and sentence imposed by the trial court are liable to be set aside.

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In the result, the appeal is allowed and the conviction and

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sentence imposed by the trial court against the appellant/accused are set aside and he is acquitted of the offences 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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Chandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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