Kerala High Court
Leela vs State Of Kerala on 9 April, 2021
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.2180 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 1892/2001 DATED 26-10-2006 OF
ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES,
NEYYATTINKARA
AGAINST THE ORDER/JUDGMENT IN CP 161/2000 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, KATTAKKADA
APPELLANT/ACCUSED:
LEELA,D/O. RAJAMMA,
LEELA BHAVAN, PUNNAVILA,
KIZHAKKUM KARA, MANJARAMOOLA,
MARANELLOOR DESOM,
MARANELLOOR VILLAGE.
BY ADVS.
SRI.GEO PAUL
SRI.C.R.PRAMOD
SRI.SANU MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE SUB INSPECTOR,
MALAYINKEEZHU POLICE STATION,
THIRUVANANTHAPURAM,
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.2180 OF 2006
2
JUDGMENT
Dated this the 9th day of April 2021
The accused in S.C.No.1892/2001 on the file of the
Additional Sessions Court for the trial of Abkari Act
cases, Neyyattinkara has filed this appeal being
aggrieved by the judgment dated 26.10.2006, whereby she
has been found guilty of offence under Section 58 of
the Abkari Act and convicted and sentenced to undergo
rigorous imprisonment for a period of 2 years and to
pay a fine of ₹1,00,000/- and in default of payment of
fine to undergo rigorous imprisonment for a further
period of 3 months.
2. The case of the prosecution is that on
12.08.2000 at about 12 noon, the Assistant Sub
Inspector of Police, Malayinkeezhu Police Station
received information that arrack was being sold by the
accused and on enquiry, he found the accused in
possession of a 5 litre black jerrycan filled with
arrack and 1½ litre bottle containing 1 litre of
arrack. Before the court below, the prosecution
CRL.A.No.2180 OF 2006
examined PW1 to PW7 and Exts.P1 to P6 were marked. On
the basis of the evidence on record the court below
found the accused guilty of offence, convicted her and
imposed on her the sentence referred above.
3. Heard.
4. Even though several contentions have been
taken in the memorandum of appeal, the appellant is
entitled to succeed in this appeal for the sole reason
that the forwarding note along with which the sample
was forwarded to the Chemical Examiner has not been
produced and marked in this case. This Court has held
in Unnikrishnan Nair V. State of Kerala reported in
(2020 (3) KHC 455) and Sadasivan @ Para V. State of
Kerala reported in (2020 KHC 478) that the failure to
produce the forwarding note will lead to a situation
where the Court cannot hold that the prosecution has
proved beyond any reasonable doubt that the sample
which was taken from the thondy articles had reached
the Chemical Examiner in tamper proof condition.
5. On a perusal of the records, I find that the
CRL.A.No.2180 OF 2006
entire thondy articles which were produced before the
court on 12.08.2000 were returned for safe custody to
the Station House Officer, Malayinkeezhu Police Station
on the same day. The Officer who detected the offence
has not extracted any sample from the seized articles.
There is nothing in evidence to show when exactly the
sample was taken, how it was taken and the manner in
which it was sealed. Even though the prosecution has
examined the Thondy Clerk to show that the sample was
taken by the Thondy Clerk on directions by the
Magistrate, the deposition of the Thondy Clerk does not
give any details regarding the manner in which the
sample was taken. Ext.P6, which is the extract of the
relevant pages of the thondy register also does not
disclose such details except for stating that sample
had been received for forwarding to the Chemical
Examiner. It is not stated as to when the sample or
the contraband articles were brought to the court again
after 12.08.2000, the day on which it had been returned
to the Station House Officer. In the absence of any
CRL.A.No.2180 OF 2006
evidence regarding the despatch of the sample, the
taking of the sample from the thondy articles and the
safe custody of the thondy articles and the sample, the
accused is entitled to the benefit of doubt.
6. In the above circumstances, the appellant is
entitled to succeed in this appeal. The judgment dated
26.10.2006 in S.C.No.1892/2001 on the file of the
Additional Sessions Court for the trial of Abkari Act
cases, Neyyattinkara is set aside. The appellant is
acquitted and set at liberty. The bail bonds, if any,
executed by the appellant or on her behalf are
cancelled.
This appeal stands allowed.
Sd/-
T.R.RAVI, JUDGE
Pn
