Gopu @ Gopalan Maniyani vs The State Of Kerala
2021 Latest Caselaw 11685 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.1197 OF 2006

  AGAINST THE JUDGMENT IN SC.No.215/2002 DATED 22-06-2006 OF THE
    COURT OF ADDITIONAL SESSIONS JUDGE(ADHOC-III), KASARAGODE

  CP.NO.73/2001 DATED 20-07-2002 OF JUDICIAL MAGISTRATE OF FIRST
                         CLASS, KASARAGOD


APPELLANT/ACCUSED:

             GOPU @ GOPALAN MANIYANI
             S/O.KOGGU MANIYANI,
             THANAPPANAJE,
             NEERCHAL VILLAGE.

             BY ADVS.
             SRI.M.THAMBAN
             SMT.T.SUDHAMANI

RESPONDENT/COMPLAINANT:

             THE STATE OF KERALA
             REP.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.1197 OF 2006

                                      2


                             JUDGMENT

Dated this the 9th day of April 2021

The accused in SC.No.215/2002 on the file of the Court of Additional

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

by the judgment dated 22.06.2006 whereby he was found guilty of offence

under sections 55(a) of the Abkari Act and convicted and sentenced to

undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1 lakh

and in default of payment of fine, to undergo rigorous imprisonment for six

months.

2. The case of the prosecution is that, on 29.10.2000 at 4 pm, the

accused was found in possession of 10 litres of arrack. The Court below

examined PW1 to PW4 and Exts. P1 to P6 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. Even though several contentions have been raised in the

appeal memorandum, I find that the appellant is entitled to succeed on the

sole ground that the forwarding note which has been produced and marked

as Ext.P5 does not bear the impression of the specimen seal used for sealing

the sample which was sent for Chemical Examination. The forwarding note

also does not bear the date on which it was prepared and does not show the

date of which the Magistrate has counter signed it. This Court has held that

the failure to affix the impression of the specimen seal used for sealing the

sample is fatal for the prosecution case and it will lead to a situation where CRL.A.No.1197 OF 2006

the Court cannot hold that the prosecution has proved beyond reasonable

doubt that the sample which was collected at the scene of occurrence has

reached the Chemical Examiner for analysis in a tamper proof condition.

(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]. In the light of the law laid down by this

Court and on the facts of this case, the appellant is entitled to be succeed in

this appeal.

4. In the result, the judgment dated 22.06.2006 in S.C.No.215/2002

on the file of the Court of Additional Sessions Judge (Adhoc-III), Kasargod 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. On 23.06.2006,

this Court had directed the appellant to pay a sum of Rs.25,000/- out of the

fine amount. The appellant is entitled to get refund of the same on filing

proper application before the court below.

The appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Sn