Yesodharan vs State Of Kerala
2021 Latest Caselaw 11665 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.814 OF 2007

  AGAINST THE JUDGMENT IN SC.No.167/2005 DATED 25-04-2007 OF THE
      COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC)III, KOLLAM

 CP 156/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA


APPELLANT/ACCUSED:

             YESODHARAN
             S/O. VELAYUDHAN,
             MUKALUVILA VEEDU,
             IVERKALAPADINJATTINKARA NORTH MURI,
             KUNNATHOOR VILLAGE, KUNNATHOOR TALUK.

             BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

RESPONDENT/COMPLAINANT/STATE:

             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 09.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.814 OF 2007

                                          2




                                JUDGMENT

Dated this the 9th day of April 2021

The accused in SC.No.167/2005 on the file of the Court of Additional

Sessions Judge (Adhoc-III), Kollam has filed this appeal being aggrieved by

the judgment dated 25.04.2007 whereby the appellant was found guilty of

offence under sections 55(g) of the Abkari Act and convicted and sentenced

to undergo simple imprisonment for one year and to pay a fine of Rs.1 lakh

and in default of payment of fine, to undergo simple imprisonment for three

months.

2. The case of the prosecution is that, on 18.10.2001 at 10.20 hrs, the

Excise party led by CW1, the Preventive Officer attached to the

Sasthamkotta Excise Range Office, found the accused in possession of wash

for the purpose of manufacturing of illicit arrack in two cans of 35 litres

each. Before the Court below, the prosecution examined PW1 to PW5 and

Exts. P1 to P11 were marked. 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. Vinoy Varghese Kallummoottil, learned counsel on

behalf of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf

of the State.

4. The counsel for the appellant contended that there was a long delay

of almost two years in completion of the Investigation and the appellant is CRL.A.No.814 OF 2007

entitled to the benefit of doubt. It is further submitted that the forwarding

note which has been produced as Ext.P9 in the case is seen to have been

prepared on 18.01.2001, but on going through the report of the Chemical

Examiner, it is seen that the sample was actually forwarded only on

16.11.2001 and received by the Examiner on 17.11.2001. The counsel

points out that there is absolutely no explanation for this delay in forwarding

the sample and there is also no evidence regarding the safe custody of the

sample during this period. He further points out that the 'thondy' clerk has

not been examined in the case to show that the sample was kept in the

Court in safe custody. I find considerable force in the contentions raised by

the counsel for the appellant. It can be seen from the property list produced

as Ext.P8, that the properties were produced before the Court on

18.10.2001 and on the very same day it has been returned to the Excise

Inspector for safe custody until further orders. Since the contraband articles

were in the possession of the Excise Inspector, it was necessary that the

prosecution proved the safe custody of the sample in the Excise Range

Office and also proved the date on which the sample was again produced

before the Court for the purpose of forwarding to the Chemical Examiner.

Apart from the above aspects, on going through Ext.P9 forwarding note it is

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

Chemical Examination is not stated in the document. The date on which the

Judicial First Class Magistrate has counter signed the document is also not

written. The impression of the specimen seal used for sealing the sample CRL.A.No.814 OF 2007

sent for Chemical Examination is also not placed on the forwarding note.

This Court in 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] held that the failure to affix the impression of the specimen seal

used for sealing the sample is fatal for the prosecution case. 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. This Court in

Kumaran v. State of Kerala [ 2016 (4) KLT 718] held that the failure to write

the date on which the Magistrate has counter signed the forwarding

note is fatal for the prosecution case. In the light of the above

infirmities, the appellant is entitled to the benefit of doubt.

5. In the result, the judgment dated 25.04.2007 in S.C.No.167/2005

on the file of the Court of Additional Sessions Judge (Adhoc-III), Kollam 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