CRL.A NO. 1186 OF 2007 1
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. 1186 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 402/2005 OF ADDITIONAL DISTRICT
COURT (ADHOC), PATHANAMTHITTA
CP 111/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR
APPELLANT/S:
OMANA KUTTAN
S/O. NARAYANAN, SPALACHUVATTIL VEEDU, THALAYAR,,
ANGADICKAL VADAKKUMURI, ANGADICKAL VILLAGE.
BY ADVS.
M.T.SURESHKUMAR
V.V.RAJA
RESPONDENT/S:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1186 OF 2007 2
P.V.KUNHIKRISHNAN, J
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Crl. Appeal No. 1186 of 2007
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Dated this the 24th day of June, 2022
JUDGMENT
This Criminal Appeal is filed against the conviction and sentence imposed on the appellant as per the judgment dated 28.6.2007 in SC No. 402/2005 on the file of the Addl.Sessions Judge, (Adhoc)-I, Pathanamthitta. The above case is chargesheeted against the appellant by the Sub Inspector of Police, Kodumon alleging offences punishable under Secs. 8(1) & (2) and 55(a) of the Abkari Act.
2. The prosecution case in brief is that on 13.9.2002 at 17.45 hrs, the accused was found carrying a 5 litre cannas containing about 2 litres spirit and a glass tumbler. It is also alleged that, he also possessed 35 litres of spirit in another cannas for sale near his house adjacent to the canal at Thalayara, Angadickal north Muri, Angadickal Village and thereby committed the offence as stated above. CRL.A NO. 1186 OF 2007 3
3. To substantiate the case, the prosecution examined PW1 to PW3. Exts.P1 to P7 were marked. MO1 to MO3 are the material objects. After going through the evidence and documents, the trial court found that the accused committed the offences under Sec.55(a) of the Abkari Act. The trial court found that the offence under Sec.8(1) is not established. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for 9 months. Aggrieved by the same, this Criminal Appeal is filed.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. The short point raised by the appellant is that no forwarding note is marked in this case. The forwarding note is an important document, which is to be marked in Abkari cases. If that is not produced, it is fatal to the prosecution. The importance of forwarding note is considered by this Court in several judgments. In Prakashan and anr. v. State of Kerala [2016 KHC 96], Vijayan @ Pattalam Vijayan and anr. v. State of CRL.A NO. 1186 OF 2007 4 Kerala [2018 (2) KLT 814], Gireesh @ Manoj v. State of Kerala [2019 (4) KLT 79] and Balachandaran v. State of Kerala [2020 (3) KHC 697], this point is considered in detail. It will be beneficial to extract the relevant portion of the judgment in Gireesh's case (supra).
"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. 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 samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN
16))."
6. In the light of the above dictum, I think the appellant is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 28.6.2007 in SC No. 402/2005 on the file of the Addl.Sessions Judge, (Adhoc)-I, CRL.A NO. 1186 OF 2007 5 Pathanamthitta is set aside and the appellant is set at liberty.
The bail bonds, if any, executed by the appellant, are cancelled.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS