A. Mohammed Kunhi v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2012-02-01
Court Decision / Holding: The revision petition is allowed. The conviction and sentence passed by the courts below are set aside and the accused is acquitted of the charge. If any fine has been paid, it shall be refunded.
Final Disposition: Acquitted

Parties to the Case

Appellants / Petitioners

A. Mohammed Kunhi

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala Ernakulam
Station House Officer Kasaragod Police Station, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• Sri M. Ramesh Chander

Counsels for Respondents

• Public Prosecutor Sri T. R. Rajesh

Case Synopsis & Summary

This is a Kerala High Court revision petition by A. Mohammed Kunhi challenging a conviction under Section 55(a) of the Abkari Act for importing Indian-made foreign liquor from Karnataka into Kerala. The case arose after police intercepted a bus at Eriyal, Kasaragod, on 6 July 1998, discovering 12 bottles of liquor (180 ml each) in the possession of the accused. The bottles bore a label stating ‘for sale in Karnataka only’, and the items were seized under Ext. P2 mahazar with Ext. P3 FIR. The trial court convicted him and sentenced him to two years’ rigorous imprisonment and a fine of Rs. 1 lakh, with set-off allowed. On appeal, the appellate court affirmed the conviction but reduced the sentence to two months’ RI and a fine of Rs. 1 lakh with a default stipulation of one month. In the revision petition before the High Court, the petitioner argued that inconsistencies between Ext. P2 and the lab report Ext. P7 cast serious doubt on the identity of the seized samples submitted for chemical analysis; he also argued unexplained delay between seizure (6 July 1998) and arrival in court (14 July 1998) and lack of custody evidence. He relied on Rajendran v. State of Kerala to contend delay could vitiate the prosecution. The prosecution contended that the record showed the label and custody were established. The High Court ultimately allowed the revision, set aside the conviction and sentence, and acquitted the accused, directing refund of any fine paid.

Provisions of Law Cited

Abkari Act, Section 55(a)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Ext. P2 and Ext. P5 record the bottles as having a ‘for sale in Karnataka only’ label, while Ext. P7 chemical analysis report does not reflect this labeling. He contended that there is no proven link that the samples sent for chemical analysis were the ones seized at the time of seizure, as required for a valid chain of custody. The inconsistency between the seizure mahazar and the forwarding note/analysis caused substantial doubt about the prosecution’s case. He also raised unexplained delay between seizure (6.7.1998) and arrival at court (14.7.1998), with no credible custody explanation, relying on Rajendran v. State of Kerala for the proposition that unexplained delay can be fatal to a case. The petitioner urged acquittal on these grounds.

Contentions of Respondents

Prosecution argued that the record shows that the seized bottles bore the same labeling and that samples sent for analysis were indeed drawn from the seized items; it asserted that custody was adequately explained by PW5 and that the delay between seizure and court submission did not vitiate the case. It contended that the evidence, including Exts. P2, P5, and P7, sufficed to sustain conviction notwithstanding minor inconsistencies, and that the trial and appellate courts correctly upheld the conviction before this revision."

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajendran v. State of Kerala	2007(1) KLT 971	Mentioned Only	Cited by the petitioner to argue that unexplained delay is fatal; the High Court did not adopt this proposition in its decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** ## **CRRP.No. 971 of 2006 ( )** **-----------------------CRA.63/2002 of COURT OF ADDL. SESSIONS JUDGE (ADHOC)I, KASARAGOD SC.358/1999 of COURT OF ASSISTANT SESSIONS JUDGE, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **A.MOHAMMED KUNHI, AGED 63 YEARS, S/O.ANGATI ANDUNHI, PERIYA ROAD PALLIKKARA VILLAGE.** **BY ADV. SRI.M.RAMESH CHANDER** ## **RESPONDENTS/COMPLAINANTS:** **------------------------** ## **1. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM** **2. STATION HOUSE OFFICER** **KASARAGOD POLICE STATION, KASARAGOD** **R1 AND R2 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **STK** ## **P.BHAVADASAN, J.** ---------------------------------------------------Crl.RP No.971 of 2006 ---------------------------------------------------Dated this the 1[st] day of February 2012 ## Order The accused was prosecuted for the offence punishable under Section 55(a) of the Abkari Act. He was found guilty and was accordingly convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and in default, to undergo rigorous imprisonment for one more year. Set off as per law was also allowed. In appeal, the conviction was confirmed, but the sentence was modified into rigorous imprisonment for two months and to pay a fine of Rs.1,00,000/- with a default clause of rigorous imprisonment for one month. 2. According to the prosecution case, on 6.7.1998, as per information received, the accused was found in possession of 12 bottles, each containing 180 ml. of Indian made foreign liquor produced in the State Crl RP 971/06 2 of Karnataka when a bus was intercepted at Eriyal, Kasaragod taluk. He was found importing the same from Karnatake to Kerala in contravention of the provisions of the Abkari Act. All the items were seized as per Ext.P2 mahazar. Two of the bottles were taken as sample. Accordingly, a crime was registered as per Ext.P3 F.I.R. The investigation was completed and the charge was laid before court. 3. The trial court took cognizance of the offence and the charge was read out to the accused, to which he pleaded not guilty and claimed to be tried. The prosecution, therefore, examined Pws 1 to 5 and had Exts.P1 to P7 marked. MO1 series items were also identified and marked. 4. The trial court, on an appreciation of the evidence in the case and found that the prosecution has succeeded in establishing a case against the accused and therefore, the conviction and sentence,. as already mentioned followed. Crl RP 971/06 3 5. In appeal, the lower appellate court found no reason to interfere with the findings of the trial court and confirmed the conviction and senctence. 6. The learned counsel for the revision petitioner raised two points before this court for consideration. It is pointed out that going by the seizure mahazar, the evidence of the prosecution, all the 12 bottles which were seized contained a label “for sale in Karnataka only”. The two samples sent for chemical examination as well as the chemical analysis report namely Ext.P7 do not show that the bottles carried the label “for sale in Karnataka”. It was therefore contended that there was no evidence to show that the sample sent for chemical analysis were the samples alleged to have been seized from the accused. It was also contended that the date of incident was 6.7.1998 but the contraband articles reached the court only on 14.7.1998. There is no evidence to show as to who was in custody of the contraband articles in the meanwhile. Relying on the decision in **Rajendran v. State of Kerala** Crl RP 971/06 4 (2007(1) KLT 971), it was contended that unexplained delay is fatal to the case. 7. As far as the second ground is concerned, there is no merit. Of course, PW2 hasa stated that he is not aware as to who was in possession of the articles during the period, but PW5 was specific in saying that it is in his custody.The custody of the articles is properly explained. This contention has to fail. 8. The other contention regarding absence of label, merits consideration. In Ext.P2 seizure mahazar and Ext.P5 property list, there is mention of the words “for sale in Karnatakaonly” on the bottle. But, in the forwarding note and the analysis report, there is no mention of such a label. Only two bottles were sent for analysis. 9. It was contended that there is want of evidence to show that the samples sent for chemical analysis were the samples taken at the time of seizure. The evidence adduced by the Prosecution shows that all the 12 bottles contained the label “for sale in Karnataka Crl RP 971/06 5 only” and so also the documents produced by the Prosecution mention the said fact. 10. In the absence of any material to show that the bottles sent for chemical analysis did contain the label, as shown in the mahazar, property list etc, it caould not be said that the samples sent for chemical analysis are the samples alleged to have been taken at the time of seizure. If that be so, the prosecution case has to fail. In the result, this revision petition is allowed. The conviction and sentence passed by the courts below are set aside and the accused is acquitted of the charge levelled against him. If he has already paid the fine amount, it shall be refunded to him. ## **P.Bhavadasan, Judge** sta Crl RP 971/06 6 Crl RP 971/06 7