Sudhakaran vs State Of Kerala
2021 Latest Caselaw 3489 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                      CRL.A.No.1070 OF 2007

 AGAINST THE ORDER/JUDGMENT IN SC 698/2001 OF ADDITIONAL SESSIONS
     COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA


APPELLANT/ACCUSED:

             SUDHAKARAN,
             S/O. DAMODARAN,
             BHAGEERATHY VILASOM,
             ONAMCODE, NADOORKOLLA DESOM,
             NEYYATTINKARA TALUK.

             BY ADVS.
             SRI. R. T. PRADEEP
             SRI. V. VIJULAL
             ADV. BINUDAS M.

RESPONDENT/COMPLAINANT:

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

             ADV. SYLAJA S.L, PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1070 OF 2007

                                        2



                                     JUDGMENT

Dated this the 1st day of February 2021

The appellant challenges the conviction and sentence

imposed in S.C No.698 of 2001 on the files of the Additional

Sessions Court for Trial of Abkari Act Cases, Neyyattinkara.

The offence alleged against the appellant is punishable under

Section 58 of the Abkari Act (for short 'the Act'). The

Sessions Court found the accused guilty and sentenced him

to undergo rigorous imprisonment for a period of one year

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

rigorous imprisonment for a period of six months.

2. The prosecution case was that, on 18.05.1998 at

about 6 p.m while the Excise Inspector was conducting patrol

duty he found the accused on a road possessing 25 litres of

black jerry can. On examination, the can was found to

contain 20 litres of arrack. The accused was thus

apprehended and on questioning, it was found that the

accused had committed the offence punishable under Section

58 of the Act.

CRL.A.No.1070 OF 2007

3. After investigation the final report was filed and on

realising that the case was one triable exclusively by the

court of Session, the learned Magistrate made over the case

to the Sessions Court, Neyyattinkara and thereafter to the

Additional Sessions Court for the Trial of Abkari Act Cases,

Neyyattinkara.

4. In order to prove the prosecution case, PWs 1 to 6

were examined and Exts.P1 to P10 were marked, apart from

MO1, which is the black can alleged to have been carried by

the accused.

5. After analysing the evidence adduced in this case

the learned Sessions Judge found the accused guilty for the

offence alleged and convicted him and imposed the sentence

as stated earlier.

6. I have heard Advocate Bindudas M. on behalf of

Advocate R.T Pradeep for the appellant as well as Advocate

Sylaja S.L, the learned Public Prosecutor.

7. Advocate Bindudas M., the learned counsel for the

appellant in her submissions pointed out that one factor that CRL.A.No.1070 OF 2007

arises in the case alone is sufficient to destroy the entire

prosecution case. While buttressing the submissions relating

to the above factor pointed out by her, Adv. Bindudas invited

my attention to Ext.P9 forwarding note and submitted that

absence of a seal in the forwarding note creates doubt on the

prosecution case and the sanctity of the specimen that was

sent for analysis to the chemical laboratory will stand

doubtful. She referred to the decision in Smithesh V. State

of Kerala [2019 (2) KLT 974] as well as recent decisions of

this Court in Balachandran V. State of Kerala [2020 (4)

KLT 137] and Sajeevan V. State of Kerala [2020 (6) KLT

53].

8. Contradicting the arguments of the learned

counsel for the appellant, Adv. Sylaja, the learned Public

Prosecutor submitted that the absence of the specimen seal

in the forwarding note had been considered by the learned

Sessions Judge who referred to the seal affixed by the

Magistrate Court and found that as sufficient to satisfy the

requirement of the provisions.

CRL.A.No.1070 OF 2007

9. I have considered the rival submissions stated as

above. It is no longer an issue that requires a detailed legal

analysis as to whether the specimen seal must be affixed on

the forwarding note. It has been repeatedly held by this

Court that sample seal in the forwarding note links the

seizure of the contraband and connects it to the sample

taken and sent for analysis to the chemical laboratory.

Absence of the specimen seal in the forwarding note creates

a doubt on the prosecution version that it was the same

sample taken at the time seizure from the accused, produced

before the Magistrate and was thereafter sent for chemical

analysis.

10. In the instant case it is seen that no specimen seal

was affixed on the sample that was taken at the time the

contraband was seized. In the absence of specimen seal

affixed at the time of sampling and thereafter at the time of

preparation of the forwarding note clearly shows that the

prosecution case cannot be believed in its entirety and the

benefit of doubt is certainly be accorded to the accused. As

rightly pointed out by the learned counsel for the appellant CRL.A.No.1070 OF 2007

the aforesaid proposition is categorically laid down in the

decisions reported in Smithesh's case (supra),

Balachandran's case (supra) and Sajeevan's case

(supra).

11. Since the very edifice of the prosecution case is on

shaky legs no further arguments are necessary for granting

the benefit of doubt to the accused.

In the aforesaid circumstances, the appellant is found

not guilty and is to be set at liberty and the judgment

impugned is set aside. Accordingly, the accused in S.C

No.698 of 2001 on the files of the Additional Sessions Judge

for the Trial of Abkari Act Cases, Neyyattinkara shall stand

acquitted and this appeal allowed. The bail bond executed

by the accused, if any, shall stand cancelled. If fine amount

was deposited the same shall be refunded forthwith.

Sd/-

BECHU KURIAN THOMAS JUDGE

SPR