Krishnankutty vs State Of Kerala
2021 Latest Caselaw 11745 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.1435 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 445/2005 DATED 25-07-2006 OF
       ADDITIONAL SESSIONS COURT, FAST TRACK-II, PALAKKAD


APPELLANTS/ACCUSED:

      1      KRISHNANKUTTY
             AGED 62 YEARS
             S/O.PADMANABHAN,
             PUTHANVEEDU,
             CHORAPPADAM,
             THIRUVAZHIYODE.

      2      LEELA
             AGED 50 YEARS
             W/O. KRISHNANKUTTY,
             PUTHANVEEDU,
             CHORAPPADAM,
             THIRUVAZHIYODE.

             BY ADVS.
             P.VIJAYA BHANU
             SRI.P.M.RAFIQ


RESPONDENT/COMPLAINANT/STATE:

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

             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.1435 OF 2006

                                       2



                                 JUDGMENT

Dated this the 9th day of April 2021

The accused in S.C.No.445/2005 on the file of the

Additional Sessions Court, Fast Track II, Palakkad have

filed this appeal, being aggrieved by the judgment

dated 25.07.2006, whereby they have been found guilty

of offence under Section 55(b)&(g) read with Section

8(2) of the Abkari Act and the 1st accused has been

sentenced to undergo simple imprisonment for 4 years

and to pay a fine of ₹1,00,000/- and in default of

payment of fine to undergo simple imprisonment for a

further period of 6 months and the 2nd accused has been

sentenced to pay a fine of ₹25,000/- and in default of

payment of fine, to undergo simple imprisonment for 2

months.

2. The case of the prosecution is that on

16.07.2000, the accused were found using utensils for

the purpose of manufacturing illicit arrack in the

residential house bearing Door No.917/1 owned by the 2 nd

accused in Thiruvazhiyode Village in violation of the CRL.A.No.1435 OF 2006

provisions of the Abkari Act and Rules. Before the

court below the prosecution examined PW1 to PW13 and

Exts.P1 to P10 were marked. Material objects, MO1 to

MO8 were produced and identified. On the basis of the

evidence on record, the court below found the accused

guilty of the offence, convicted them and imposed on

them the sentence referred above.

3. Heard Sri.P.M.Rafiq, learned counsel on behalf

of the appellants and Smt.S.L.Sylaja, learned Public

Prosecutor on behalf of the State.

4. The counsel for the appellants contended that

initially the investigation was carried out by the

Assistant Sub Inspector of Police who cannot be treated

as an Abkari Officer and hence the investigation was

without jurisdiction. He points out that Ext.P9, which

is the forwarding note produced and marked in the case,

does not bear the impression of the specimen seal used

for sealing the sample sent for chemical examination.

5. On a perusal of the records, I find that there

is considerable force in the contention raised by the CRL.A.No.1435 OF 2006

learned counsel for the appellants. Ext.P9, which is

the forwarding note, does not bear the impression of

the specimen seal used for sealing the sample.

Admittedly, the samples were taken at the spot of

occurrence by the Detecting Officer and had been sealed

using the seal. The document also does not show the

Officer with whom the sample is to be sent for chemical

examination and the date on which the Magistrate had

countersigned. This Court has held 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) that the failure to affix the

impression of the specimen seal used for sealing the

sample is fatal to the prosecution case. In such

circumstances, the Court cannot hold that the

prosecution has proved beyond any reasonable doubt that

the sample which was taken at the scene of occurrence

had reached the Chemical Examiner in tamper proof

condition. Since I am inclined to allow the appeal on

that reason, I do not think it is necessary to go into CRL.A.No.1435 OF 2006

the question whether there was want of jurisdiction at

the initial stage of the investigation.

6. In the result, the judgment dated 25.07.2006 in

S.C.No.445/2005 on the file of the Additional Sessions

Court, Fast Track II, Palakkad is set aside. The

appellants are acquitted and set at liberty. The bail

bonds, if any, executed by the appellants or on their

behalf are cancelled. On 26.07.2006, this Court had

directed the appellants to deposit a sum of ₹5,000/-

each out of the fine amount. Appellants are entitled

to refund of the above said amount on filing proper

application before the court below.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn