Allowed

Omana v. State

Kerala HC20 Mar 2024CRL.A/1589/2010

Case brief

AI extract

What is this about?

Accused convicted for possessing arrack under Section 8(2) of the Abkari Act appeals. The court found the seizure mahazar lacked seal details, the specimen seal was never produced or forwarded to the laboratory, and officials who handled the sample were unexamined. The chemical analysis certificate was held valueless; conviction could not stand.

What did the court decide?

Appellant acquitted under Section 8(2) Abkari Act and set at liberty; deposited amount, if any, to be disbursed to her.

Omana Vs State — Kerala HC (2024) — LawSathi Research

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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 K. BABU

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WEDNESDAY, THE 20TH DAY OF MARCH 2024 / 30TH PHALGUNA, 1945

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CRL.A NO. 1589 OF 2010

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AGAINST THE JUDGMENT IN SC NO.89 OF 2007 OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, (ADHOC), FAST TRACK,
PATHANAMTHITTA

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APPELLANT:

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OMANA, D/O.VELUMPI,
PRAKASH BHAVAN VEEDU,
MUNDAPPALLY, PERINGANADU, ADOOR,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.A.C.DEVY

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RESPONDENT:

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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.

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BY SRI.G.SUDHEER -PUBLLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

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20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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K.BABU, J

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Crl.A No.1589 of 2010

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-------------------------------------------------Dated this the 20th day of March, 2024

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J U D G M E N T

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Aggrieved by the judgment dated 6.7.2010, passed by the Additional District and Sessions Court (Ad-Hoc), Fast Track Court I, Pathanamthitta in S.C.No.89/2007, the accused has preferred this appeal.

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The Trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 lakh.

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The prosecution case is that on 7.9.2002 the accused was found in possession of 4½ liters of arrack at Puthanchantha Junction in Adoor.

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After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Adoor. The case was committed to the Sessions Court, Pathanamthitta from where it was made over to the Trial Court. On the appearance of the accused, charge was

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CRL.A NO. 1589 OF 2010

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framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the Trial Court for the aforesaid offence.

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The prosecution examined PWs.1 to 5 and proved Exts.P1 to P8 and MO1. CW1 was examined as court witness and Exts.C1 and C2 were marked as court exhibits.

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After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted her thereunder.

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Heard Sri.A.C.Devy, the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent.

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The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized from

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CRL.A NO. 1589 OF 20104

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the scene of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:

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i) 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. ii) There is no evidence to show that the specimen of the seal was produced before the Court to ascertain the genuineness of the sample.

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iii) The various officials who handled the sample during its transit from the court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with.

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The alleged seizure was effected on 7.9.2002. The detecting officer had drawn sample at the scene of occurrence. Ext.P1 seizure mahazar does not contain the nature and description of the seal used. The detecting officer has not given evidence as to the nature of the seal . There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory.

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In Bhaskaran v. State of Kerala (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the

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CRL.A NO. 1589 OF 20105

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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.

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In Rajamma v. State of Kerala [2014 (1) KLT 506],

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this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report.

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The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 19.9.2002. The sample was delivered in the laboratory on 24.9.2002 through an Excise Guard by name Sri.Mohan Kumar. The sample remained in the custody of the property clerk till 19.9.2002. The property clerk and the Excise Guard were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex

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CRL.A NO. 1589 OF 2010

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Court in State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314].

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Therefore, the prosecution failed to prove that the contraband allegedly seized from the place of occurrence eventualy reached the Chemical Examiner's Laboratory. Therefore Ext.P8 Certificate of Chemical Analysis has no evidentiary value.

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The upshot of the above discussion is that the conviction and sentence entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. She is acquitted of the offence alleged. She is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to her as per the law.

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The Crl.Appeal is allowed as above.

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Sd/-

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K.BABU

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Omana v. State

Case brief

What is this about?

What did the court decide?

Omana v. State

Case brief

What is this about?

What did the court decide?

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