Allowed

Balakrishnan v. State of Kerala

Kerala HC20 Sept 2023Crl.Rev.Pet/501/2006

Case brief

AI extract

What is this about?

The High Court allowed the revision petition, setting aside the conviction and sentence in a case under the Kerala Abkari Act for possession of illicit arrack. The acquittal was granted because the prosecution failed to strictly comply with statutory formalities regarding seizure and sample corroboration, and there was no identification of the accused by investigating officers.

What did the court decide?

Conviction and sentence set aside; revision petitioner acquitted; bail bond cancelled; liberty forthwith.

Balakrishnan Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2023)

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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 VIJU ABRAHAM

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WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945

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CRL.REV.PET NO. 501 OF 2006

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AGAINST THE JUDGMENT IN CRA 290/2004 OF III ADDITIONAL SESSIONS COURT, KOZHIKODE JUDGMENT IN SC NO. 325/2002 OF III ADDITIONAL ASST.SESSIONS COURT, KOZHIKODE

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REVISION PETITIONER/ACCUSED:

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BALAKRISHNAN, S/O.IMBICHI,
MARAMBARAMBATH HOUSE,
P.O.PALATH, VIA KAKKODI, KOZHIKODE.

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BY ADV SRI.P.V.ANOOP

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RESPONDENT/COMPLAINANT & STATE:

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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SRI.M.C.ASHI

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
20.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.RP No.501 of 2006

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VIJU ABRAHAM,J

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Crl.R.P.No.501 of 2006

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Dated this the 20^th day of September, 2023

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ORDER

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Revision petitioner is the accused in S.C.No.325 of 2002 on the file of the Additional Assistant Sessions Court-III, Kozhikode registered alleging commission of offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act.

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The prosecution allegation is that the accused was found in possession of 5 litres of illicit arrack in a 5-litre can on 27.06.2000 at 6.00 p.m. at the roadside near the pathway leading to Maramparambath Kariyathan Bhagavathi Temple situated in Palath amsom-desom, Kozhikode taluk in contravention to the provisions of the Kerala Abkari Act.

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To prove the case of the prosecution, PW1 to PW6 were examined and marked Exts.P1 to P8 and MO1. On the side of the defence, DW1 was examined and marked Exts.D1 and D1(a) which are the General Diary extracts.

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4 . The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a

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Crl.RP No.501 of 2006

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further period of three months. Though an appeal was preferred as Crl.Appeal No.290 of 2004 before the IIIrd Additional Sessions Court, Kozhikode, the same was dismissed confirming the conviction and sentence imposed by the trial court.

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The revision petitioner has taken a contention that it has come out in evidence of PW1 that he has affixed a seal shown as “BDN” in MO1 and the requisition for chemical analysis. It is contended by the learned counsel for the revision petitioner that the specimen seal in Ext.P7 is entirely different from the seal mentioned by PW1 which he has affixed on Ext.P1 mahazar. It is further submitted that PW1 who is the detecting officer and PW6 who is the investigating officer have not identified the accused in court. So the only point to be considered is how far such lacuna is detrimental to the case of the prosecution.

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Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in Baburaj v. State of Kerala, 2021 (6) KLT 416 , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section

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Crl.RP No.501 of 2006

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114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in Sathi v. State of Kerala, 2007 (1) KLT SN 57. In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt.

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I have perused Ext.P1 mahazar dated 27.06.2000 as well as Ext.P7 forwarding note and compared the seals affixed therein. It is seen that in Ext.P1, the seal affixed is “BDN” as deposed by PW1 in his examination. But a perusal of Ext.P7 forwarding note would reveal that the seal affixed in the space for affixing the sample seal is different from the one which is affixed on Ext.P1. In view of the above lacuna, it cannot be conclusively said that the sample which has reached the Chemical Examiner’s Laboratory is the same sample which is taken from the alleged contraband. The Apex Court in Vijay Pandey v. State of U.P., AIR 2019 SC 3569 has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. Likewise, the

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Crl.RP No.501 of 2006

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non-identification of the accused in court by PW1, the detecting officer and PW6 who is the investigating officer is fatal to the prosecution case.

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The above vital aspects were not considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the courts below cannot be sustained.

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In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith.

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Sd/VIJU ABRAHAM

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JUDGE

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cks

Balakrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Balakrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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