Back
2021 Supreme(Online)(KER) 28693
HIGH COURT OF KERALA
K. Babu, J
MAJEED, S/O. MAMMU, – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/1419/2007
The prosecution must prove that the analyzed samples are the same as those seized; failure to provide links undermines the conviction.
Headnote:
Abkari Act - Possession of Liquor - Kerala Abkari Act 55(a) - The court discussed the evidentiary requirements under the Kerala Abkari Act, emphasizing the need for a clear link between seized contraband and the samples analyzed, ultimately finding insufficient evidence to uphold the conviction.
Fact of the Case:
The accused was found in possession of 24 bottles of Indian Made Foreign Liquor, leading to charges under the Kerala Abkari Act. Despite the seizure, the prosecution failed to establish that the seized items were properly analyzed and logged, raising doubts about the integrity of the evidence.
Issues: The primary issue was whether the prosecution established a sustainable conviction against the accused under Section 55(a) of the Kerala Abkari Act, considering the evidentiary standards and issues of sample integrity.
Ratio Decidendi: The court held that the prosecution must demonstrate a clear connection between the seized contraband and the analyzed samples; failure to do so results in reasonable doubt benefiting the accused.
Final Decision: The accused was acquitted of the charges and set at liberty.
J U D G M E N T
Aggrieved by the judgment dated 18.07.2007, passed by the learned Additional District & Sessions Judge, Vadakara in SC.No.65/2005, 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 18.01.2003 at about
07.00 p.m., the accused was found at the railway station road, Mahe in possession of 24 bottles of Indian Made Foreign Liquor in contravention of the provisions of the Abkari Act.
4. After completion of the investigation, the final report was submitted against the accused for the offence punishable under Section 55 (a) of the Abkari Act before the Judicial First Class Magistrate, Vadakara. The case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court.
5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P8 and MOs 1 to 6.
6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 55 (a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of
1 1/ years and to pay a fine of Rs. 1 lakh.
2
7. Heard the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent.
8. The learned counsel for the appellant/accused contended that, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was eventually subjected to the analysis in the Chemical Examiner's Laboratory.
9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to establish the charge against the accused.
10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not.
11. PW1, the Sub Inspector of police, Edachery police station detected the offence. PW1 gave evidence that on 18.01.2003 in the evening the police team led by him was on patrol duty. They reached near Mahe railway station road where they found the accused carrying a 'big shopper' and a plastic cover. On inspection PW1 found 24 bottles of Port Bridge fine brandy, each of containing 180 ml capacity and six 375 ml bottles containing the same brand of liquor. The accused was arrested at 19.10 hours. PW1 seized the contraband substance from the possession of the accused in the presence of the witnesses and collected four 375 ml bottles as sample and sealed the same.
12. PW2, the Assistant Sub Inspector who had accompanied by PW1 in the search and seizure, supported the prosecution case. PW3, an independent witness, admitted his signature in Ext.P6 scene mahazar. PW4, an attestor to Ext.P4 seizure mahazar, partly supported the prosecution. PW7 conducted initial part of the investigation. PW5 completed the investigation and submitted the final report. PW6, the property clerk of the Judicial First Class Magistrate Court, Vadakara deposed that he had received the properties including the bottles containing sample on 22.01.2003.
13. The learned counsel for the appellant/accused submitted that, the prosecution has not satisfactorily explained the delay in the production of the properties before the Court. PW6 gave evidence that the properties including the sample were produced before the Cour
