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HIGH COURT OF KERALA
K. Babu, J
BHUVANACHANDRAN @ PONNAPPAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/724/2007
Kerala Abkari Act - Conviction - Kerala Abkari Act Sections [55(a), 8(2)] - The court evaluated the procedural adherence in the seizure and analysis of contraband, emphasizing the need for credible evidence linking the seized item to the chemical analysis, leading to the reversal of the conviction.
Fact of the Case:
The appellant was found in possession of illicit arrack and was convicted under the Kerala Abkari Act. The trial court relied on procedural evidence and witness testimonies despite independent witnesses not supporting the prosecution.
Finding of the Court:
The court found significant lapses in the prosecution's ability to prove that the seized sample reached the chemical analyst without tampering, highlighting procedural weaknesses and evidentiary deficiencies.
Issues: The main issue was whether the evidence presented by the prosecution was sufficient to uphold the conviction based on procedural compliance related to sample handling and analysis.
Ratio Decidendi: The ratio decidendi emphasized that without proper evidence detailing the seal on the sample and its handling, the prosecution's claims could not be considered credible, undermining the conviction.
Final Decision: The conviction was overturned, and the accused was acquitted.
JUDGMENT
Aggrieved by the judgment dated 27-03-2007, passed by the Additional Sessions Court (NDPS Act cases), Thodupuzha in Sessions Case No.12/2006, the accused has preferred this appeal. The learned trial court convicted the appellant for the offences punishable under Sections 55 (a) and 8(2) of the Kerala Abkari Act .
2. Facts: On 21-12-2004 at 6.10 p.m., the appellant was found in possession of 1500 ml. of arrack in a bottle having a capacity of 2 litres and a glass tumbler at Nalumukku. He was arrested by the S.I of Police, Cumbummettu Police Station. The police seized the contraband substance from the possession of the accused. After the completion of investigation, final report was submitted against the accused by the Sub Inspector of Police, Cumbummettu for offences punishable under Sections 55 (a) and 8(2) of the Kerala Abkari Act before the JFCM, Nedumkandam. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court, Thodupuzha. On appearance of the accused, charges were framed against him for the offences punishable under (a) and 8(2) of the . The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offences.
3. The prosecution examined PW1 to PW4 and proved Exts.P1 to P8 and MOs1 to 3.
4. 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 total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is 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 learned trial court after hearing arguments addressed from both sides convicted the accused under Sections 55 (a) and 8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for 1 year and to pay fine of Rs.1 Lakh.
5. 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 article allegedly seized from the place of occurrence ultimately reached the hands of the Chemical Analyst.
6. The learned Public Prosecutor, per contra, resisted the contentions of the learned counsel for the appellant and submitted that all procedural formalities have been properly complied with and the prosecution successfully established the charges against the accused beyond all reasonable doubt.
7. 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
8. PW3, the Sub Inspector of Police, Cumbummettu Police Station, Idukki detected the offence. On 21-12-2004 at Nalumukk Kottar, in Karunapuram Village the accused was found in possession of 1500 ml. of illicit arrack. He was also possessing a glass tumbler. After ascertaining that the liquid contained in the bottle possessed by the accused was illicit arrack, he was arrested from the spot. The articles in his possession were seized. PW3 prepared Ext.P1 seizure mahazar in the presence of independent witnesses. PW3 sealed the contraband substance. On the basis of Ext.P1 seizure mahazar PW3 registered Ext.P5 F.I.R. The accused was produced before the Magistrate's Court concerned along with the material objects seized from the scene of occurrence. PW3 prepared Ext.P7 forwarding note requesting to send the sample collected to the laboratory. PW4, the Sub Inspector of Police conducted the investigation and submitted final report before the court on 03-09-2005.
9. PWs 1 and 2, the independent witnesses, did not support the prosecution case. They denied to have affixed their signature in Ext.P1 seizure mahazar.
10. The learned counsel for the appellant mainly canvassed the ground that the prosecution miserably failed to establish that the arrack allegedly seized from the place o
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