Kerala High Court
Gopalan vs State Of Kerala on 9 April, 2021
CRL.A.No.1293 OF 2007 1
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.1293 OF 2007
AGAINST THE JUDGMENT IN SC 143/2005 DATED 25-06-2007 OF
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
APPELLANT/ACCUSED:
GOPALAN,
S/O POKKAN, PARAMMAL HOUSE,
CHEKKIAD, VATAKARA.
BY ADVS.
SRI.K.JANARDHANAN
SRI.K.J.MANU RAJ
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1293 OF 2007 2
JUDGMENT
Dated this the 9th day of April 2021
The accused in S.C.No.143/2005 on the file of the
Additional District and Sessions Court, Vadakara, has filed this
appeal being aggrieved by the judgment dated 25.06.2007
whereby he has been found guilty of offence under Section 55(a) of
the Abkari Act and sentenced to undergo rigorous imprisonment for
a period of 1½ years and to pay a fine of Rs.1,00,000 (rupees One
Lakh only) and in default of payment fine to undergo rigorous
imprisonment for six months.
2. The case of the prosecution is that on 26.3.2003 at 8.45
p.m., the accused was found in possession of 1.980 litres of Indian
Made Foreign Liquor in a bus. Before the court below, the
prosecution examined PW1 to PW6 and Exts.P1 to P8 were marked.
MO1 series was produced and identified. On the basis of the
evidence on record, the court below found the accused guilty and
imposed on him the sentence referred above.
3. Heard Smt.M.R.Jayalatha learned counsel on behalf of
the appellant and Smt.S.L.Sylaja, learned Public Prosecutor on
behalf of the respondent State.
4. The counsel for the appellant points out that Ext.P6
forwarding note which has been produced and marked in the case
has several infirmities. It is pointed out that it is seen prepared on
26.3.2003 and does not state the name of the Officer with whom
the sample is to be sent for chemical analysis. It is also pointed
out that even though the Magistrate has countersigned the
document, the date on which the initials were put is not stated.
She further states that there is no indication in Ext.P6 regarding the
exact date on which the samples were sent for chemical analysis
and with whom it has been sent for chemical analysis. It is further
pointed out that going by the report of the Chemical Examiner
which is produced as Ext.P8, the sample was received by the
Chemical Examiner on 20.5.2003, almost two months after the
date on which the forwarding note was prepared and the said delay
is not properly explained. As regards the delay in sending the
sample for chemical analysis, the prosecution has examined the
Thondi Clerk, who has stated that the articles were despatched only
on 19.5.2003 and till then it was in his safe custody. However, the
fact that the forwarding note does not contain the name of the
Officer with whom the sample is sent for chemical analysis and the
date on which the forwarding note was countersigned by the
Magistrate is not disputed. This Court has held in Jayakumar v.
State of Kerala (2018 KHC 3165) that the failure to state the
name of the Officer with whom the sample is to be sent for
chemical analysis is fatal for the prosecution case. So also in
Kumaran v. State of Kerala (2016 (4) KLT 718)] this Court has
held that the failure to write the date on which the Magistrate has
countersigned the forwarding note is fatal for the prosecution case.
5. In the light of the law declared by this Court and on the
facts of the case, the appellant who must be around 77 years of
age now is entitled to the benefit of doubt. The judgment dated
25.6.2007 in S.C.No.143/2005 on the file of the Additional District
and Sessions Court, 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
dsn
