IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 683 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 214/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP 62/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM
APPELLANT/ACCUSED NO.1:
RAJAPPAN,S/O SANKARAN,
KOYIKKAL VEEDU, ANAKKARA VILLAGE, ANAKKARA KARA.
BY ADV. P.M.RAFIQ
RESPONDENT/COMPLAINANT - STATE:
STATE OF KERALA,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT. VIDYA KURIAKOSE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2022, ALONG WITH CRL.A.779/2006, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.A NOs. 683 & 779 OF 2006
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 779 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 214/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP 62/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM
APPELLANT/2ND ACCUSED:
MURALI,S/O.PRABHAKARA PILLAI
GIRIJABHAVANAN, 8TH MILE, ANAKKARA P.O.,
IDUKKI DISTRICT.
BY ADVS.
SRI.C.J.JOY
SRI.V.J.JAMES
RESPONDENTS/COMPLAINANT & 1ST ACCUSED:
1 STATE OF KERALA, REPRESENTED
BY SUB INSPECTOR OF POLICE, VANDANMEDU
POLICE, STATION, (CRIME NO. 101/01 OF
VANDANMEDU POLICE STATION), THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA.
2 RAJAPPAN S/O.SANKARAN
KOYIKKAL VEEDU, ANAKKARA VILLAGE AND KARA,
IDUKKI DISTRICT.
BY ADV SMT.VIDYA KURIAKOSE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 24.06.2022, ALONG WITH CRL.A.683/2006, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NOs. 683 & 779 OF 2006
3
P.V.KUNHIKRISHNAN, J.
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Crl.Appeal Nos. 683 and 779 of 2006
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Dated this the 24th day of June, 2022
JUDGMENT
These two appeals are filed by the appellants/accused against the conviction and sentence imposed on them as per judgment dated 16.03.2006 in Sessions Case No.214/2004 on the file of the Additional Sessions Judge (Adhoc) - II, Thodupuzha. The above case is charge sheeted against the appellants/accused alleging offences punishable under Section 55(a) and
(i) of the Abkari Act.
2. The prosecution case in brief is like this:
On 07.06.2001 at 1.30 p.m., the accused were found in possession of 7.380 liters of Indian Made Foreign Liquor in sixteen, 180 ml bottles and twelve, 375 ml bottles. The offence was detected by CW1, Sub Inspector of Police, Vandanmedu. On getting information that accused had stores liquor for sale in CRL.A NOs. 683 & 779 OF 2006 4 the building, he searched the building and arrested accused Nos.1 and 2 and seized the foreign liquor kept in the building.
3. To substantiate the case, the prosecution examined PW1 to PW9 and marked Exts.P1 to P8. D1 to D5 are the exhibits marked on the side of the defence. DW1 to DW3 are the witnesses examined on the side of the prosecution. MO1 to MO6 are the Material Objects.
4. After going through the evidences and documents, the trial court found that the accused committed the offence under Section 55(a) and (i) of the Abkari Act and they are sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-(Rupees One lakh only) each and in default of which they are directed to undergo rigorous imprisonment for 3 months each for the offence under Section 55(i) of the Abkari Act. No separate sentence was imposed for the offence under Section 55(a) of the CRL.A NOs. 683 & 779 OF 2006 5 Abkari Act. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard counsel appearing for the appellants and the Public Prosecutor.
6. Counsel appearing for the appellants raised a point that, in Ext.P8 forwarding note, there is no specimen seal and therefore there is no guarantee that the seized articles reached in the hands of the analyst. The counsel relied on the judgments of this Court in Ravi v. State - SI of Police, Meppadi [2018 (5) KHC 352], Smithesh v. State of Kerala [2019 (2) KLT 947] and Balachandran v. State of Kerala [2020 (3) KHC 697]. The Public Prosecutor submitted that there is oral documentary evidence to show that the accused committed the offence.
7. The point to be considered in this case is whether the accused committed the offence under Section 55(a) and (i) of the Abkari Act. This Court perused Ext.P8 forwarding note. From a perusal of the CRL.A NOs. 683 & 779 OF 2006 6 same, it is clear that, no seal is seen in the forwarding note. This point is considered by this Court in Ravi's case (supra) and in Smithesh's case (supra). It will be better to extract the relevant portion of the judgment in Smithesh's case (supra).
"8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. The Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged."
In the light of the above judgment, the conviction and sentence imposed on the appellants will not stand. Therefore, these appeals are to be allowed.
Accordingly, these two Criminal Appeals are allowed:
CRL.A NOs. 683 & 779 OF 2006 7 i. The conviction and sentence imposed on the appellants as per judgment dated 16.03.2006 in S.C. No.214/2004 on the file of the Additional Sessions Judge (Adhoc) - II, Thodupuzha is set aside and the appellants are set at liberty.
ii. The bail bonds, if any, executed by the appellants are cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE DM