Chinnan vs State Of Kerala
2021 Latest Caselaw 11095 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.1149 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC 53/2005 OF ADDITIONAL SESSIONS
                  COURT (ADHOC)-II, THODUPUZHA

  AGAINST THE ORDER/JUDGMENT IN OTHERS 43/2004 OF JUDICIAL FIRST
                CLASS MAGISTRATE COURT, DEVIKULAM


APPELLANTS/ACCUSED:

      1         CHINNAN, S/O. THANKARAJ
                III/42, BYSONVALLEY PLANCHAYAT,
                UDUMBANCHOLA TALUK.

      2         AYYAPPAN, S/O. KARUPPANNAN
                GOKULAM HOUSE, TEA COMPANY KARA,
                BYSONVALLEY VILLAGE,
                UDUMBANCHOLA TALUK.

      3         BABU ,S/O. PALANI, III/48
                BYSONVALLEY PANCHAYAT,
                UDUMBANCHOLA TALUK.

      4         KUMAR, S/O. SUBBAYYA, III/43
                BYSONVALLEY PANCHAYAT,
                UDUMBANCHOLA TALUK.

                BY ADV. SRI.P.CHANDY JOSEPH

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY EXCISE INSPECTOR,
                DEVIKULAM RANGE,
                THROUGH PUBLIC PROSECUTOR,
                HIGH COURT OF KERALA.

                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.1149 OF 2006

                                        2




                                  JUDGMENT

Dated this the 7th day of April 2021

The accused 1 to 4 in S.C.No.53/2005 on the file of

the Additional Sessions Court, Adhoc II, Thodupuzha

have filed this appeal being aggrieved by the judgment

dated 09.05.2006, whereby they have been found guilty

of offence under Section 8(2) of the Abkari Act and

sentenced to undergo rigorous imprisonment for two

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

default of payment of fine to undergo rigorous

imprisonment for a further period of 3 months each.

2. The case of the prosecution is that the

appellants along with the 5th accused were found

carrying 24 litres of arrack in 240 plastic covers in a

jeep through Munnar Top Station road. The offence is

said to have been detected on 24.08.2000. The thondy

articles were produced before the Court on 25.08.2000.

Before the court below, Exts.P1 to P9 were marked and

PW1 to PW7 were examined on the side of the

prosecution. On the basis of the evidence on record, CRL.A.No.1149 OF 2006

the Court below found the accused guilty of the

offence, convicted them and imposed on them the

sentence referred above.

3. Heard Sri.P.Chandy Joseph, learned counsel on

behalf of the appellants and Smt.S.L.Sylaja, learned

Public Prosecutor on behalf of the respondent.

4. The counsel for the appellants submits that the

appellants are entitled to succeed for the sole reason

that Ext.P6, which is the forwarding note, which has

been produced and proved in the case, does not bear the

impression of the specimen seal used for sealing the

sample which has been sent for chemical examination.

It is further pointed out that the forwarding note does

not show the name of the Officer with whom the sample

is sent for analysis and the date on which the

Magistrate countersigned is also not shown in the

document. It leads to a situation where it is not

possible to ascertain the date on which the sample was

actually despatched for analysis. Along with the

forwarding note, there is a covering letter issued by CRL.A.No.1149 OF 2006

the Magistrate to the Chemical Examiner which also does

not bear any date. I find considerable force in the

contentions raised by the counsel for the appellants.

This Court has in several decisions held that the

absence of impression of the specimen seal on the

forwarding note is fatal for the prosecution since

there is no manner in which the Chemical Examiner or

the Court could have ascertained that the sample has

reached in tamper proof condition [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)]

5. It is further seen in Ext.P9, which is the

report of the Chemical Examiner that the sample reached

the Chemical Examiner only on 02.11.2001, much after

the occurrence of the offence and the date on which the

forwarding note was prepared. In the circumstances, the

appellants are entitled to the benefit of doubt and are

entitled to be acquitted in the case.

6. Learned counsel for the appellants points out CRL.A.No.1149 OF 2006

that the 1st appellant is no more and his information is

that, appellants 3 & 4 could not avail bail and had

suffered the sentence.

7. In the above circumstances, the appeal is

allowed. The judgment dated 09.05.2006 in

S.C.No.53/2005 on the file of the Additional Sessions

Court, Adhoc II, Thodupuzha is set aside. The

appellants are acquitted and set at liberty. The bail

bonds, if any, executed by the appellants or on their

behalf are cancelled. At the time of admission, this

Court had directed the appellants to deposit a sum of

₹25,000/- each towards the fine amount. The appellants

will be entitled to refund of the amount, if any,

deposited on the basis of the directions in this

appeal, on filing proper application before the court

below.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn