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HIGH COURT OF KERALA
K. Babu, J
GNANAPRAKASAM – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/2496/2006
Liquor - Abkari Act - [Kerala Abkari Act, Section 55(a)] - The court found that the prosecution did not sufficiently demonstrate the chain of custody of the seized liquor sample, leading to the conclusion that the conviction could not be sustained.
Fact of the Case:
The accused was convicted under the Kerala Abkari Act for transporting liquor without a permit. Evidence included a seizure by the excise team, but issues arose regarding the chain of custody of the evidence, particularly the sample sent for chemical analysis.
Finding of the Court:
The court found significant gaps in the prosecution's evidence, including failures to establish proper handling and delivery of the liquor sample to the chemical analyst, resulting in a lack of assurance regarding the sample's integrity.
Issues: Whether the evidence presented by the prosecution sufficiently established that the contraband liquor samples collected from the accused reached the Chemical Examiner in a tamper-proof condition.
Ratio Decidendi: The failure to properly document and establish the chain of custody for the evidence led to a reversal of the conviction, as the prosecution did not meet the burden of proving the connection between the accused and the seized materials.
Final Decision: The conviction is overturned and the accused is acquitted.
JUDGMENT
Aggrieved by the judgment dated 06-12-2006, passed by the learned Additional Sessions Judge (Adhoc-II), Kalpetta in Sessions Case No.279/2006, the accused has preferred this appeal.
2. The trial court convicted the accused for the offence punishable under Section 55 (a) of the Kerala Abkari Act .
3. The prosecution case is that on 14-08-2004 at 6.30 p.m., the appellant (A1) and the other accused (A2) were found transporting 124.56 litres of Indian made foreign liquor in a Maruthi Omini Van bearing Registration No.TN-4B/8756 at Niravilppuzha. The Excise team led by PW1, Preventive Officer of Wayanad District Excise Enforcement and Anti Narcotic Squad, detected the offence.
4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55 (a) of the Kerala Abkari Act before the JFCM-I, Mananthavady. The case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc II), Kalpetta. On appearance of the accused charge was framed against them for the offence punishable under (a) of the . They pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence.
5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MO1 series.
6. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial court, after hearing arguments addressed from both sides, found that the appellant (A1) is guilty of offence under Section 55 (a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of 3 years and to pay fine of Rs.1 Lakh. The accused No.2 was acquitted of the offence alleged.
7. Heard Sri.Mathew Kuriakose, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent.
8. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband articles allegedly recovered from the place of occurrence ultimately reached the hands of the Chemical Examiner.
9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case.
10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the appellant/accused are sustainable or not.
The Point
11. PW1, the Preventive Officer attached to Wayanad District Excise Enforcement and Anti Narcotic Special Squad, was the detecting officer. He has given evidence that on 14-08-2004 while he was on special duty at Pakrathalam forest check post along with PW2, they searched a Maruthi Omini Van bearing registration No.TN-4B/8756. The appellant/accused was driving the vehicle and the co-accused was sitting on the left side of the vehicle. In the search, according to PW1, the excise team recovered 372 bottles of Indian made foreign liquor. PW1 stated that the accused had no valid permit to transport the liquor that he possessed. PW1 arrested the accused and seized the articles found in the vehicle and prepared Ext.P2 seizure mahazar. PW1 collected sample at the scene of occurrence. He produced the accused and seized articles before the Excise Range Inspector, Mananthavadi. PW2 who had accompanied PW1 in the detection, supported the version of PW1.
12. PWs 3 and 4, the independent witnesses, also supported the prosecution case.
13. PW5, the Inspector of Mananthavadi Excise Range, received the articles at 12.45 in the noon from PW1. PW5 produced the articles and the
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