Sachivothaman vs State Of Kerala
2021 Latest Caselaw 11683 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.2260 OF 2006

  AGAINST THE JUDGMENT IN SC.NO.620/2004 DATED 26.10.2006 OF THE
COURT OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-I, ALAPPUZHA

CP 65/2004 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KAYAMKULAM


APPELLANT/ACCUSED:

             SACHIVOTHAMAN,
             S/O. CHINNAN,
             KALEECKAL HOUSE,
             ELIPPAKKULAM MURI,
             VALLIKUNNAM VILLAGE,
             MAVELIKKARA TALUK.

             BY ADVS.
             SRI.BASANT BALAJI
             SRI.R.GOPAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,ERNAKULAM.

             BY SMT. S.L. SYLAJA PP 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.2260 OF 2006

                                      2




                             JUDGMENT

Dated this the 9th day of April 2021

The accused in SC.No.620/2004 on the file of the Court of Additional

Sessions Judge (Fast Track-I), Alappuzha has filed this appeal being

aggrieved by the judgment dated 26.10.2006 whereby he was found guilty

of offence under sections 8(1) and (2) 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 simple

imprisonment for a further period of six months.

2. The case of the prosecution is that, on 23.11.2002 at 6.00 pm, the

Preventive Officer attached to the Excise Range Office, Mavelikkara and

Excise party while on patrol duty, found the accused in possession of 3 litres

of arrack in a can of 5 litre capacity. It is stated that the accused was

arrested, the contraband seized, the representative sample taken and the

contraband articles produced before the Court. Before the Court below, the

prosecution examined PW1 to PW5 and Exts. P1 to P5 were marked. On the

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

of the offence and convicted him and imposed the sentence referred above.

3. Heard Shri. R.Gopan, 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 the prosecution has

not produced and proved the arrest of the accused as arrest memo has not CRL.A.No.2260 OF 2006

been produced in evidence. This Court has held in Ramankutty v. Excise

Inspector [2013 (3) KHC 308] that the failure to produce and mark the arrest

memo is fatal for the prosecution case and it cannot be held that

prosecution has succeeded in proving the arrest of the accused at the time

and place alleged by them. Apart from the above, the forwarding note which

is produced as Ext.P4 does not show the name of the Excise guard with

whom the sample was to be sent for chemical Examination. This Court in

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

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

Examination is fatal for the prosecution case.

5. In the result, the judgment dated 26.10.2006 in S.C.No.620/2004

on the file of the Court of Additional Sessions Judge (Fast Track-I),

Alappuzha 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