IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
CRL.A NO. 1475 OF 2006
AGAINST THE ORDER/JUDGMENT IN CP 254/2000 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA
SC 895/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT
CASES,NEYYATTINKARA
APPELLANT/ACCUSED:
MAHEEM
AGED 1 YEARS
S/O.MASTHANKANNU,PLANKALA PUTHENVEEDU, AYIRA
DESOM,, CHENKAVILA, KARODE VILLAGE.
BY ADV SRI.BLAZE K.JOSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE EXCISE INSPECTOR, THIRUPURAM
EXCISE RANGE,, REP. BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA.
BY ADV PUBLIC PROSECUTOR
SMT T V NEEMA- SR PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL. A NO. 1475 of 2006
..2..
JUDGMENT
This is an appeal filed by the accused under Section 374(2) of the Code of Criminal Procedure (for short 'Cr.P.C.') against the judgment of conviction and sentence passed by the Additional Sessions Court, (for trial of Abkari Act Cases), Neyyattinkara (for short, "the Court below") in S.C. No.895/2001 dated 20.06.2006.
2. The accused faced trial for the offence punishable under Sections 55(a) of the Abkari Act.
3. The prosecution case in short is that on 12.02.1998 at about 12.15. p.m., the appellant was found in possession of 3 litres of arrack in contravention of the Abkari Act and the Rules and thereby committed the offence.
4. On receipt of summons, the appellant appeared at the Court below. After hearing both sides, the charge for the CRL. A NO. 1475 of 2006 ..3..
offence punishable under Sections 55(a) of the Abkari Act was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty.
5. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P7. MO1 was identified. Considering the evidence on record, the court below found the appellant guilty for the offence punishable under Section 58 of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for a period of three months. Aggrieved by the conviction and sentence, the appellant preferred this appeal.
6. I have heard Sri.Blaze K Jose, the learned counsel for the appellant and Smt. T.V. Neema, the learned Public Prosecutor.
7. A perusal of the records would show that the CRL. A NO. 1475 of 2006 ..4..
forwarding note by which the contraband article was forwarded to the Chemical Analysis Laboratory has not been produced. A mere production of the laboratory report that the sample tested was contraband substance is not sufficient unless and until the forwarding note also is produced.
8. This Court in Gireesh @ Manoj v. State of Kerala [2019 KHC 655] has held that in the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. The forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the Chemical Analysis Laboratory by change of hands in a tamper proof condition. Hence, I am of the view that non production of the forwarding CRL. A NO. 1475 of 2006 ..5..
note is fatal to the prosecution.
9. Ext. P1 is the mahazar. A perusal of Ext. P1 would show that it does not contain the sample seal or the description of the seal used. This Court in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. As already stated, Ext.P1 mahazar does not show either the sample seal or the description of the sample seal used.
10. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below cannot be sustained.
11. Accordingly, the conviction and sentence passed by CRL. A NO. 1475 of 2006 ..6..
the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the offences charged against him and accordingly he is acquitted. His bail bond is cancelled.
The appeal is allowed as above.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE RMV/01/07/2022