Kumaran vs State Of Kerala
2021 Latest Caselaw 11663 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                      CRL.A.No.1878 OF 2007

  AGAINST THE JUDGMENT IN SC.NO.759/2005 DATED 27-09-2007 OF THE
     COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE, VADAKARA


APPELLANT/ACCUSED:

             KUMARAN,
             S/O. CHATHU,
             AGED 54 YEARS
             IDAPPALLICHIRAYIL HOUSE,
             KUNNUMMAL AMSOM, PATHIRAPATTA.

             BY ADV. SRI.SUNNY MATHEW

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             THROUGH THE STATION HOUSE OFFICER,
             KUTTIADI POLICE STATION,
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SMT. S.L. SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1878 OF 2007

                                      2



                             JUDGMENT

Dated this the 9th day of April 2021

The accused in SC.No.759/2005 on the file of the Court of Additional

District and Sessions Judge , Vadakara has filed this appeal being aggrieved

by the judgment dated 27.09.2007 whereby the appellant was found guilty

of offence under sections 55(a) and (f) 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 six months.

2. The case of the prosecution is that, on 23.03.2004 at 4.35 pm, the

accused was found in possession of 2 litres of illicit arrack. Before the Court

below, the prosecution examined PW1 to PW5 and Exts. P1 to P7 were

marked. On the side of the defence, DW1 was examined. On the basis of the

evidence on record, the Court below found the appellant guilty of the

offence, convicted him and imposed on him the sentence referred above.

3. Heard Shri. Sunny Mathew, on behalf of the appellant and

Smt.Shylaja, learned Public Prosecutor on behalf of the State.

4. The counsel for the appellant submitted that admittedly, the

material objects which was produced before the Court was completely

damaged and did not contain any arrack. There was not even a lid. Under

the circumstances, he submits that the prosecution has failed to prove that

the sealed articles were kept in safe custody and was in a tamper proof CRL.A.No.1878 OF 2007

condition. It is also submitted that the forwarding note does not show the

name of the officer with whom the sample is sent for Chemical Examination

and there is nothing to show the actual dispatch of the sample. I find

considerable force in the second contention raised by the counsel for the

appellant. On a perusal of Ext.P5 forwarding note, it is seen that there is no

date showing the date on which it was prepared. A seal of the Magistrate's

Court on the forwarding note would indicate that it was received by the

Magistrate only on 07.05.2004, much after the incident. This Court in

Jayakumar v. State of Kerala (2018 KHC 3165) held that the failure to write the

name of the officer with whom the sample is to be sent for Chemical

Examination is fatal for the prosecution case. In the absence of proper

evidence to show the actual dispatch of the sample and the details of the

person with whom the sample is to be sent, I am inclined to accept the

contentions raised by the counsel for the appellant.

5. In the result, the judgment dated 27.09.2007 in S.C.No.759/2005

on the file of the Court of Additional District and Sessions Judge, Vadakara 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