Santhosh vs State Of Kerala
2021 Latest Caselaw 17506 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

         THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943

                          CRL.A NO. 1191 OF 2013

  AGAINST THE ORDER/JUDGMENT IN SC 642/2012 OF ADDITIONAL DISTRICT COURT

         (ADHOC), FAST TRACK NO.1,PATHANAMTHITTA, PATHANAMTHITTA

APPELLANT/ACCUSED:

            SANTHOSH @ MADAN SANTHOSE, AGED 42 YEARS
            S/O SUKUMARAN, REMYA VILASOM, ATHIRUNKAL MURI, KOODAL VILLAGE,
            ADOOR TALUK, PATHANAMTHITTA DIST.
            BY ADVS.
            SRI.V.SETHUNATH
            SRI.S.JUSTUS


RESPONDENT/COMPLAINANT/STATE:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM,
            PIN:682 031.



            SMT. M.K. PUSHPALATHA (SR.P.P)



THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1191 OF 2013
                                        2




                                  JUDGMENT

Appellant is aggrieved by the conviction and

sentence imposed upon him for the offence

punishable under Section 8(1) and 8(2) of the

Kerala Abkari Act as per judgment dated

22.07.2013 in S.C.No.642/2012 on the files of the

Additional Sessions (Ad-hoc) Fast Track Court-I,

Pathanamthitta.

2. The prosecution case was that on 04.12.2010, the

accused/appellant was found engaged in the

business of sale of illicit arrack in a rubber

plantation of one George at Koodal village and he

was found in possession of 750 ml of arrack and a

glass, thereby committing the offence as alleged.

After investigation, when the final report was filed,

the learned Magistrate, on noticing the commission

of an offence exclusively triable by a court of

Session, committed the same to the Sessions Court.

3. The prosecution in an attempt to prove its case CRL.A NO. 1191 OF 2013

examined Pws 1 and 2 and marked ExtsP1 to P9

apart from identifying MO1 and MO2. CW1 was

examined as a court witness while Ext.C1 was

marked through her.

4. After analysing the evidence adduced, the learned

sessions Judge found the accused guilty for the

offence alleged against him and sentenced him to

undergo rigorous imprisonment for one year and to

pay a fine of Rs.1,00,000/- in default, to undergo

rigorous imprisonment for a period of 15 days for

the offence under Sections 8(1) and 8(2) of the

Kerala Abkari Act.

5. I heard Adv.V.Sethunath, the learned counsel

appearing for the appellant as well as

Adv.M.K.Pushpalatha, the learned Public

Prosecutor.

6. The learned counsel appearing for the appellant

raised a solitary point of argument, which,

according to him, is sufficient enough to destroy

the entire prosecution case. By relying upon the CRL.A NO. 1191 OF 2013

decisions of this Court in Sajeevan v. State of

Kerala [2020 (6) KLT 53] and Sadasivan v. State

of Kerala & another [2020 KHC 478], the learned

counsel submitted that the forwarding note had not

been produced in evidence in this case, thereby

rendering the entire prosecution case bereft of any

reliability.

7. The learned public prosecutor fairly conceded that,

unfortunately, the forwarding note had not been

marked in evidence.

8. I have considered the rival contentions. It is true

that the forwarding note had not been marked in

evidence in the instant case, which is evident from

the records that have been produced as well as the

appendix to the judgment. The decisions relied

upon by the learned counsel for the appellant

squarely covers the issue. The non production of

the forwarding note is fatal to the prosecution case

and that alone is sufficient to acquit the accused, in

a case under the Kerala Abkari Act. The decisions CRL.A NO. 1191 OF 2013

Sajeevan (supra) & Sadasivan (supra) are

authoritative for the said proposition. In view of

the above, the prosecution case remains not proved

beyond reasonable doubt.

9. Accordingly, the conviction and sentence imposed

upon the accused/appellant in S.C.No.642/2012 on

the files of the Additional District & Sessions (Ad-

hoc) Fast Track Court-1, Pathanamthitta, is hereby

set aside and the appellant is acquitted. The bail

bond, if any executed, shall stand cancelled. The

fine amount or any part of it, if already remitted,

shall be refunded to the appellant forthwith.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE AMV/26/08/2021