Allowed

K.M.Devan v. State of Kerala

Kerala HC11 Mar 2024CRL.A/418/2011

Case brief

AI extract

What is this about?

Appeal against conviction under Section 8(2) Abkari Act for possession of arrack. The High Court found the seizure mahazar lacked seal details, the sample's chain of custody was unproved, and transit handlers were not examined, breaking the link between accused and contraband. Conviction set aside; accused acquitted.

What did the court decide?

Appellant acquitted of offence under Section 8(2) Abkari Act; set at liberty; fine amount deposited to be disbursed as per law.

K.M.Devan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2024)

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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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MONDAY, THE 11TH DAY OF MARCH 2024 / 21ST PHALGUNA, 1945

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CRL.A NO. 418 OF 2011

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AGAINST THE ORDER/JUDGMENT DATED 29.01.2011 IN SC NO.283 OF 2007
OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA
APPELLANT:

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K.M.DEVAN
KARINGALODU, MUPPAINAD, WAYANAD DISTRICT.
BY ADVS.
SRI.A.C.DEVY
SRI.P.S.LATHEESH

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RESPONDENT:

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

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SRI.G.SUDHEER P.P

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

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11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 418 OF 2011

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K.BABU, J .

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CRL.A.No.418 of 2011

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Dated this the 11^th 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 29.01.2011, passed by the Additional Sessions Court, Adhoc-II, Kalpetta, in Sessions Case No.283/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1 Lakh.

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The prosecution case is that on 11.06.2007, at 6.p.m.

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the appellant was found in possession of 3 litres of country made arrack at Muppainadu in violation of the provisions of the Abkari Act.

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After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional magistrate. The case was committed to the Sessions Court, from where it was made over to the trial court. On the

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CRL.A NO. 418 OF 2011

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appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the trial court for the aforesaid offence.

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The prosecution examined PWs.1 to 4 and proved Exts.P1 to P8, MOs.1,2 and MOs.3 to 5 series.

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After the closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He

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pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of defence, DW1 was examined. After hearing the arguments addressed on both sides, the trial court convicted the appellant/accused for the aforesaid offence.

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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

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CRL.A NO. 418 OF 2011

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judgment of conviction and sentence on the ground that the prosecution failed to prove that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.

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The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:-

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i) Exhibit P2 seizure mahazar does not contain the

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nature and description of the seal stated to have been affixed on the bottle containing the sample.

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ii) The specimen of the seal was not produced before the court at the time of production of the properties including 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.

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The alleged seizure was effected on 11.06.2007. The

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detecting officer had drawn sample at the scene of occurrence.

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Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the

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CRL.A NO. 418 OF 2011

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bottle containing the sample. There is no material to show that the specimen of the seal was produced along with other properties before the Court to ensure the genuineness of the sample produced. The detecting officer has not given evidence as to the nature of the seal used.

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In Bhaskaran K. v. State of Kerala and another (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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The sample was produced before the Court on 12.06.2007. The property clerk received the sample. On 13.06.2007 the sample was forwarded to the Chemical Examiner's Laboratory as per letter dated 13.06.2007 of the Chief Judicial Magistrate Court, Kalpetta. Exhibit P6, copy of forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. The space meant for entering the name of Excise Guard with whom the

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CRL.A NO. 418 OF 2011

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sample was forwarded to the laboratory is left vacant. Exhibit P7 shows that the sample was delivered in the laboratory on 13.06.2007 through an Excise Guard by name Sri.Shajimon. The property clerk of the Court and the Excise Guard who delivered the sample in the laboratory 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 Court in State of Rajasthan v. Daulath Ram [AIR 1980 SC 1314].

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As the prosecution failed to show that the very same contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Exhibit P7, Certificate of Chemical Analysis has no evidentiary value.

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In the instant case, the prosecution failed to establish the link connecting the accused with the contraband seized.

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The upshot of the above discussion is that the

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CRL.A NO. 418 OF 2011

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conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to him as per law.

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The Criminal Appeal is allowed as above.

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Sd/-

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K. BABU JUDGE

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saap

K.M.Devan v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.M.Devan v. State of Kerala

Case brief

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What did the court decide?

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