Manikantan @ Mohanan vs State Of Kerala
2021 Latest Caselaw 11090 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                      CRL.A.No.1236 OF 2007

 AGAINST THE JUDGMENT IN SC.NO.1023/2001 DATED 05-06-2007 OF THE
  COURT OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT
                       CASES, NEYYATTINKARA

    CP.NO.377/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
                          NEYYATTINKARA


APPELLANT/ACCUSED :

             MANIKANTAN @ MOHANAN,
             S/O. RAJAMONY,
             HOUSE NO.27,
             MANCHADY COLONY, KOTTAMAOM,
             PARASUVAIKKAL VILLAGE,
             NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.G.P.SHINOD
             SRI.MANU V.

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR AT
             HIGH COURT OF KERALA,

             BY SMT. S.L SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1236 OF 2007

                                   2

                          JUDGMENT

Dated this the 7th day of April 2021

The accused in SC.No.1023/2001 on the file of the Court of

Additional Sessions Judge for the trial of Abkari Act Cases,

Neyyattinkara has filed this appeal being aggrieved by the judgment

dated 05.06.2007 whereby he was found guilty of offence under

section 58 of the Abkari Act and convicted and sentenced to undergo

rigorous imprisonment for two years and to pay a fine of Rs.1 lakh

and in default of payment of fine, to undergo rigorous imprisonment

for a further period of three months.

2. The case of the prosecution is that the Preventive Officer of

the Amaravila Excise Range Office while on patrol duty on 23.02.2000

at about 5.00 pm, found the accused in possession of 5 litres of

arrack. The Court below examined PW1 to PW5 and Exts.P1 to P11

were marked. On the basis of the evidence on record, the Court below

found the appellant guilty of the offence and convicted and imposed

the sentence referred above.

3. Heard Shri. Shinod G.P, learned counsel on behalf of the

appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the

State.

4. The counsel for the appellant submits that there are several

discrepancies in the prosecution case and the appellant is entitled to CRL.A.No.1236 OF 2007

the benefit of doubt. He pointed out that from Ext.P6, it can be seen

that what was produced before the Court as contraband articles was a

can containing 5 litres of arrack. The Detecting Officer had not

collected the sample of the contraband articles. It was seen from

Ext.P6 that on 24.02.2000, the 'thondy' articles were directed to be

kept in the custody of the Excise Range office. The above fact is

confirmed from the extract of the 'thondy' register, which is produced

as Ext.P7 and it can been seen that the entire 'thondy' articles were

remaining with the Excise Range Office from 24.04.2000. Ext.P5 is

the forwarding note marked in the case, which would show that the

sealed sample bottle of arrack labelled, is the article which is sought

to be sent for Chemical Examination. There is no indication regarding

the manner in which the sample was collected from the 'thondy'

articles. It is pointed out that Ext.P6 does not state that the 'thondy'

articles produced before the Court were in a sealed condition.

Moreover, the forwarding note does not bear the impression of the

specimen seal used for sealing the sample. However, a sample seal

has been produced as Ext.P4. On a verification of Ext.P4, it is seen

that the seal is that of the Magistrate and not of the Excise Range

Officer, from where obviously the sample must have been taken. A

covering letter from the Magistrate to the Chemical Examiner dated

14.03.2000 is also attached to the forwarding note and has been CRL.A.No.1236 OF 2007

produced as Ext.P3. Ext.P3 is dated 14.03.2000. However, the date

and the details contained in the documents have been filled up in a

typewritten letter. This court has held that the failure to affix the

impression of the specimen seal used for sealing the sample in the

forwarding note is fatal for the prosecution case. (See Ravi v. State

of Kerala [2018 (5) KHC 352] ; Balachandran v. State of Kerala

[2020 (3) KHC 697]; Smithesh v. State of Kerala [2019 (2) KLT

974]. Apart from the above, the fact that the entire 'thondy' articles

were with the Excise Officials from 24.02.2000 is also a fact which is

to be considered. There is nothing in evidence to show the safe

custody of the 'thondy' articles which were produced before the Court

without any seal, in the Excise Range Office.

5. In the result, the appellant is entitled to the benefit of doubt.

The judgment dated 05.06.2007 in S.C.No.1023/2001 on the file of the

Court of Additional Sessions Judge for the trial of Abkari Act Cases,

Neyyattinkara is set aside. The appellant is acquitted and set at

liberty. Bail bonds if any executed by the appellant or on his behalf

are cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE Sn