Indira vs State Of Kerala
2021 Latest Caselaw 11684 Ker

CRL.A.No.1828 OF 2006                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.1828 OF 2006

    AGAINST THE JUDGMENT IN SC 966/2004 DATED 02-09-2006 OF
 ADDITIONAL DISTRICT COURT (FAST TRACK-I), THIRUVANANTHAPURAM


APPELLANT/ACCUSED:

             INDIRA
             W/O MANILAL,KUNNUMPURATHU VEEDU,
             CHEMMARUTHI VILLAGE, KOVUR.

             BY ADV. SRI.D.KISHORE

RESPONDENTS/STATE & COMPLAINANT:

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

      2      THE EXCISE INSPECTOR
             VARKALA EXCISE RANGE.

              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.1828 OF 2006                2




                              JUDGMENT

Dated this the 9th day of April 2021

The accused in SC.No.966/2004 on the file of the Additional

District and Sessions Judge, Fast Track-I, Thiruvananthapuram

has filed this appeal being aggrieved by the judgment dated

02.09.2006 whereby she was found guilty of offence under

Sections 55(a), 8(1) and (2) of the Abkari Act and convicted and

sentenced to undergo rigorous imprisonment for 1½ 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 17.9.2000 at 4.00

p.m., the accused was found in possession of 1.350 litres of

arrack in MO2 series 9 plastic covers, each having a capacity of

150 ml. Before the court below the prosecution examined PW1 to

PW4 and Exts.P1 to P7 were marked. On the basis of the evidence

on record, the court below found the accused guilty of the offence

charged, convicted her and imposed the sentence referred above.

3. Heard Sri D.Kishore learned counsel on behalf of the

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

the State.

4. The learned counsel for the appellant submits that the

appellant is entitled to succeed in this appeal for the sole reason

that the forwarding note does not bear the impression of the

specimen seal used for sealing the sample sent for chemical

analysis. It is also pointed out that the name of the Officer with

whom the sample was to be sent for chemical analysis is also not

mentioned in the forwarding note.

5. I find considerable force in the contentions raised by

the counsel for the appellant. On a perusal of Ext.P7, which is the

forwarding note, it is seen that, the same was prepared on

17.9.2000. But it does not contain the name of the Officer with

whom the sample was to be sent for analysis as well as the

impression of the specimen seal. This Court in several judgments

has held that failure to affix the impression of the specimen seal

used for sealing the sample sent for chemical analysis is fatal for

the prosecution case and the accused will be entitled to be

acquitted. (See 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]. So also 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. Moreover, it is noticed that the forwarding note does

not give any indication as to the exact date on which the sample

was despatched to the Chemical Examiner. Ext.P2 which is the

certificate issued by the Chemical Examiner shows that the

sample was received by him only on 28.11.2000. There is

nothing in evidence to show where exactly the sample was during

this period. It is pertinent to note that Ext.P6 property list, along

with which the contraband articles were produced before the

Court on 17.9.2000, shows that the same was returned to the

Excise Officer for safe custody. The manner in which the materials

were kept in safe custody by the Excise Officer is not stated in

evidence.

6. In the light of the settled legal position and on the facts of

this case, the judgment dated 02.09.2006 in SC.No.966/2004 on

the file of the Additional District and Sessions Judge, Fast Track-I,

Thiruvananthapuram is set aside. The accused 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