Kumaresan vs State Of Kerala
2021 Latest Caselaw 11096 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.1195 OF 2007

  AGAINST THE JUDGMENT IN SC.No.720/2001 DATED 07-05-2007 OF THE
  COURT OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT
                       CASES, NEYYATTINKARA

    CP.NO.218/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
                          NEYYATTINKARA


APPELLANT/ACCUSED:

             KUMARESAN,
             S/O. TITUS,
             VATTAVILA VEEDU,
             PIRAVILAKOM,
             VIZHINJAM VILLAGE.

             BY ADV. SRI.S.MOHAMMED AL RAFI

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             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.1195 OF 2007

                                  2

                          JUDGMENT

Dated this the 7th day of April 2021

The accused in SC.No.720/2001 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 07.05.2007 whereby he was found guilty of offence under

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

rigorous imprisonment for one year 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 the Sub Inspector of

Police, Vizhinjam Police Station on 11.02.2000 received information

that arrack is being sold by the accused and on reaching the scene of

occurrence, the accused was found under a tamarind tree in the

garden land engaged in the sale of arrack and in possession of 5 litre

capacity can which contained 3 litres of arrack. According to the

prosecution, the 'thondy' articles were seized and the accused was

arrested. The 'thondy' articles were produced before the Court on the

next day. Before the court below, the prosecution examined PW1 to

PW5 and Exts.P1 to P9 were marked. On the basis of the evidence on

record, the Court below found the appellant guilty of the offence,

convicted him and imposed the sentence referred above. CRL.A.No.1195 OF 2007

3. Heard Shri. S.Muhammed Al Rafi, 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 Ext.P8 forwarding

note produced and marked in the case does not bear the impression

of the specimen seal used for sealing the sample which was

forwarded for Chemical Examination. It is further pointed out that the

forwarding note does not show the name of the Excise Guard with

whom the sample is to be sent for analysis and the date of actual

dispatch of the sample is also not clear from the forwarding note. It is

further pointed out that even though the 'thondy' clerk was examined

as PW5, he did not make any mention about the date on which the

sample was taken. Proceedings of the Magistrate directing the taking

of the sample by the 'thondy' clerk is also not produced in the case. I

find considerable force in the contentions raised by the counsel for

the appellant.

5. On a perusal of Ext.P8, it is seen that it does not bear the

impression of the specimen seal and it does not contain the name of

the Excise Guard with whom the sample is to be sent for analysis. It is

stated in the forwarding note that 250 ml of arrack collected from the

material object as sample was sent for Chemical Examination. The

document does not say anything about sealing the sample and states CRL.A.No.1195 OF 2007

that the label of the Court has been affixed on the sample. Ext.P7

produced in the case is the sample seal of the Magistrate. The

relevancy of the court seal is not at all clear since the entire 'thondy'

articles were remaining with the Police Station after it was returned

from the Court for safe custody. The manner in which the sample was

taken and was sealed, the persons who were present during the

taking of the sample, the proceedings based on which the sample was

taken by the 'thondy' clerk are all matters which are left to one's

imagination. The evidence that is available on record is not sufficient

to hold that the representative sample of the contraband articles had

reached the Chemical Examiner in a tamper proof condition. The

appellant is entitled to the benefit of doubt.

6. In the result, the judgment dated 07.05.2007 in

SC.No.720/2001 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