Sisupalan vs the State of Kerala

Sisupalan vs The State of Kerala

Type Court Judgment Court Kerala Decided Mar 09, 2021

~4 min read

https://sooperkanoon.com/case/1608474

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/1608474
Court: Kerala High Court
Judge: Honourable Mr. Justice B.Sudheendra Kumar
Decided On: Mar 09, 2021
Case Number: CRL.A/1764/2006

Parties & Advocates

Appellant / Petitioner

Sisupalan

Respondent

The State of Kerala

Excerpt

.....appellant was convicted and sentenced by the court below under section 55(g) of the abkari act.2. the prosecution allegation is that on 07.05.2000 at about 2.00 p.m., the appellant was found in possession of 30 litres of wash for the purpose of manufacturing arrack in contravention of the provisions of the abkari act.3. since there is no representation for the appellant, this court has appointed adv. mansoor ali as amicus curiae to argue the case for the appellant.4. heard the learned amicus curiae and the learned senior public prosecutor.5. the learned amicus curiae has argued thatsince there was unexplained delay in producing the samples before the court, the appellant is entitled to be acquitted. it has been further argued by the learned amicus curiae that since no forwarding note was produced or marked in this case, the appellant is entitled to be acquitted on that ground as well.6. in this case, the incident was on 07.05.2000.ext.p4 is the property list, which would show that the samples were produced before the court only on 24.05.2000. pw4 produced the samples before the court. pw4 did not state any reason for the delay in producing the samples before the court. there is also no evidence with regard to the safe custody of the samples till their production before the court.7. since there was long and unexplained delayfrom 07.05.2000 to 24.05.2000 in producing the samples before the court, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant. in the said circumstances, the appellant is entitled to be acquitted.8. it appears that no forwarding note was produced or marked in this case.9. in sasidharan v. state of kerala [2007 (1) klt 720], the court observed thus:“without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the chemical examiner with a specimen seal sent separately.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 AGAINST THE ORDER/JUDGMENT IN SC 683/2001 DATED 24-06-2006 OF ADDITIONAL SESSIONS COURT, (ABKARI), KOTTARAKKARA AGAINST THE ORDER/JUDGMENT IN CP 32/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA PETITIONER/ACCUSED:
SISUPALAN SON OF KUMARAN,MUKALUVILA VEEDU, KUDAVATTOOR MURI, VELIYAM VILLAGE. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT/S/COMPLAINANT: THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT THROUGH THE SUB INSPECTOR OF POLICE, POOYAPPALLY. SMT. M. K. PUSHPALATHA,SR.PP, SRI. MANSOOR ALI, AMICUS CURIAE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellant was convicted and sentenced by the court below under Section 55(g) of the Abkari Act.

2. The prosecution allegation is that on 07.05.2000 at about 2.00 p.m., the appellant was found in possession of 30 litres of wash for the purpose of manufacturing arrack in contravention of the provisions of the Abkari Act.

3. Since there is no representation for the appellant, this court has appointed Adv. Mansoor Ali as Amicus Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the learned senior Public Prosecutor.

5. The learned Amicus Curiae has argued that

since there was unexplained delay in producing the samples before the court, the appellant is entitled to be acquitted. It has been further argued by the learned Amicus Curiae that since no forwarding note was produced or marked in this case, the appellant is entitled to be acquitted on that ground as well.

6. In this case, the incident was on 07.05.2000.

Ext.P4 is the property list, which would show that the samples were produced before the court only on 24.05.2000. PW4 produced the samples before the court. PW4 did not state any reason for the delay in producing the samples before the court. There is also no evidence with regard to the safe custody of the samples till their production before the court.

7. Since there was long and unexplained delay

from 07.05.2000 to 24.05.2000 in producing the samples before the court, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, the appellant is entitled to be acquitted.

8. It appears that no forwarding note was produced or marked in this case.

9. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:

“Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant”.

10. In Ravi v. State of Kerala [2011 (3) KLT 353],

the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition.

11. Since no forwarding note was produced

and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Therefore, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband

seized from the appellant which eventually reached the hands of the Chemical examiner by change of hands in a tamper-proof condition. In the said circumstances, there is no link evidence to connect the appellant with the sample analysed in the laboratory. In the said circumstances, the conviction and sentence passed by the court below relying on Ext.P5 certificate of chemical analysis cannot be sustained.

In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. SD/- SUDHEENDRA KUMAR JUDGE RK/09.03.2021

Same Court & Year Kerala · 2021 Same Parties Sisupalan vs The State of Kerala Same Judge Honourable Mr. Justice B.Sudheendra Kumar