Saimon vs State Of Kerala
2021 Latest Caselaw 11092 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.2106 OF 2006

AGAINST THE ORDER/JUDGMENT IN SC 1995/2001 OF ADDITIONAL SESSIONS
     COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA

AGAINST THE ORDER/JUDGMENT IN CP 91/2000 OF JUDICIAL MAGISTRATE OF
                      FIRST CLASS, KATTAKADA


APPELLANT/ACCUSED:

             SAIMON, S/O. ACHUTHAN,
             R.R. BHAVAN, MUNDAVANKUNNU,
             AZHANKAL, MUKUNTHARA DESOM,
             KALLIKKADU VILLAGE.

             BY ADV. SRI.R.T.PRADEEP


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY THE DIRECTOR GENERAL OF PROSECUTION,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2106 OF 2006

                                         2



                                JUDGMENT

Dated this the 7th day of April 2021

The accused in S.C.No.1995/2001 on the file of the

Additional Sessions Court for the trial of Abkari Act

Cases, Neyyattinkara has filed this appeal being

aggrieved by the judgment dated 31.10.2006, whereby he

has been found guilty of offence punishable under

Section 58 of the Abkari Act and convicted and

sentenced to undergo rigorous imprisonment for a period

of 5 years and to pay a fine of ₹1,00,000/- and in

default of payment of fine to undergo rigorous

imprisonment for a further period of 6 months.

2. The case of the prosecution is that the

Assistant Sub Inspector of Police, Neyyardam Police

Station, on 13.03.2000 at about 10.00 a.m., received

information over phone that arrack was being stored in

a cow-shed close to the house of one Simon. On

reaching the place, he has stated to have found the

accused pouring arrack from a 20 litre size black CRL.A.No.2106 OF 2006

jerrycan into a 5 litre can and that he abandoned the

contraband articles and ran away on seeing the Police.

According to the prosecution, they found two 20 litres

capacity black jerrycans, one filled fully with arrack,

one filled with 16 litres of arrack and a 5 litre can

containing 4 litres of arrack. According to the

prosecution, the thondy articles were produced before

the court. Before the trial court, PW1 to PW7 were

examined on the side of the prosecution and Exts.P1 to

P9 were marked. On the side of the defence, Exts.D1 to

D9 were marked and DW1 and DW2 were examined. On the

basis of the evidence on record, the court below found

the accused guilty of the offences, convicted him and

imposed on him the sentence referred above.

3. Heard.

4. Even though several contentions have been taken

in the memorandum of appeal, I find that the appellant

is entitled to succeed in this appeal for the reason

that no forwarding note has been produced, proved and

marked in this case. On a perusal of the records, it CRL.A.No.2106 OF 2006

is evident that the Detecting Officer had not taken

samples from the spot and the entire thondy articles

were produced before the court. Even though the

detection is said to have taken place on 13.03.2000, it

can be seen from Ext.P3 thondy list that the contraband

articles were produced before the court only on

15.03.2000. It is further seen that on the very same

day, the entire thondy articles were returned to the

SHO for keeping the same in safe custody until further

orders. This fact is further affirmed in Ext.P9, which

is the extract of page 39 of the thondy register.

Neither the thondy register nor the thondy list state

anything about the sample being taken from the

contraband articles and keeping the same in sealed

condition. No proceedings of the Magistrate whereby

the Thondy Clerk was authorised to take sample has been

produced. Though the Thondy Clerk was examined as PW6,

there is nothing in his evidence which clearly points

out to the taking of the sample in a manner

permissible. Even though in the chief examination he CRL.A.No.2106 OF 2006

stated that he had taken sample in 3 bottles on

directions from the Magistrate, during the cross

examination, he says that the order of the Magistrate

was only oral and it has not been recorded in the

thondy register. He also says that he has no training

for taking samples and that nothing has been recorded

regarding any seal or label. When there is no clear

evidence regarding the taking of the sample, the

failure to produce and prove the forwarding note

assumes more importance. This Court has held in so

many decisions that the failure to produce and prove

the forwarding note is fatal for the prosecution case

and that it leads to a situation where the Court would

not be able to hold that the very same sample which was

collected from the contraband articles had reached the

Chemical Examiner for analysis in a tamper proof

condition. [see Unnikrishnan Nair V. State of Kerala

reported in (2020 (3) KHC 455) and Sadasivan @ Para V.

State of Kerala reported in (2020 KHC 478)].

5. In the above circumstances, the appellant is CRL.A.No.2106 OF 2006

entitled to succeed in this appeal. Hence the judgment

dated 31.10.2006 in S.C.No.1995/2001 on the file of the

Additional Sessions Court for the trial of Abkari Act

cases, Neyyattinkara is set aside. The appellant is

acquitted and set at liberty. The bail bonds, if any,

executed by the appellant or on his behalf are

cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn