Appeal against conviction under Section 8(2) Abkari Act for possession of arrack. Seizure mahazar lacked seal description, sample production before court was delayed without explanation, and tamper-proof despatch to laboratory was not proved. Conviction set aside; accused acquitted on benefit of doubt.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
CRL.A NO. 2445 OF 2010
(AGAINST THE JUDGMENT DATED 18.11.2010 IN SC NO.581 OF 2008
OF ADDITIONAL SESSIONS COURT (ADHOC)- FAST TRACK COURT-II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
VIJAYAMMA, D/O.KALYANI
THENNAPARAMPIL VADAKKECHARUVIL VEEDU,
PAZHAKULAM KIZHAKKU MURI,
PEIRNGANADU VILLAGE, ADOOR TALUK.
BY ADV SRI.A.C.DEVY
RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY PP SRI.G.SUDHEER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.No.2445 of 2010
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JUDGMENT
Aggrieved by the judgment dated 18.11.2010, passed by the Additional District and Sessions Court (Ad-Hoc), Fast Track Court – II, Pathanamthitta in S.C.No.581/2008, the appellant/accused has preferred this appeal. The appellant was convicted 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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Crl.A.No.2445 of 2010
and therefore, she came to be tried by the trial Court for the aforesaid offence.
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following circumstances to substantiate his contentions:
nature and description of the seal stated to have been used by the detecting officer.
detecting officer prepared Ext.P3 seizure mahazar, which does not contain the nature and description of the seal stated to have been used by the detecting officer. The specimen of the seal was not produced before the Court to establish the genuineness of the sample produced. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison.
(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 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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property list shows that the properties including the sample were produced before the Court only on 10.10.2007. The explanation given by the prosecution is that the sample was initially produced before the Magistrate at his residence on 09.10.2007, and later produced before the Court on 10.10.2007. There is no convincing material to show that the sample was produced before the Magistrate on 09.10.2007. The prosecution has not offered any satisfactory explanation to the delay in the production of properties including the sample before the Court.
the question of delay in the production of properties, a Division Bench of this Court held as follows:
“8. We, therefore, answer the reference as follows: 1. 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.”
(Emphasis supplied)
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3569) the Apex Court 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 that tested have to be co-related.
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The Criminal Appeal is allowed as above.
Sd/- K.BABU Judge
TKS
1 issue framed by the court
Whether absence of seal description in the seizure mahazar and unexplained delay in production of the sample broke the chain of custody so as to vitiate conviction under Section 8(2) Abkari Act?
Colour shows how this judgement treated each authority
Bhaskaran K. v. State of Kerala and anotherRelied on¶10
2020 KHC 5296
Ravi v. State of KeralaRelied on¶12
2011 (3) KHC 353
Vijay Pandey v. State of U.PRelied on¶16
AIR 2019 SC 3569 · Who else cites this
5 provisions across 2 enactments
Vijayamma, D/o. Kalyani
State of Kerala represented by the Public Prosecutor
K. BABU
As recorded by the court registry
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