Sasi vs State Of Kerala
2021 Latest Caselaw 4152 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                          CRL.A.No.584 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC 226/2002 OF ADDITIONAL DISTRICT
                    COURT (ADHOC), MAVELIKKARA

 AGAINST THE ORDER/JUDGMENT IN CP 171/2000 OF JUDICIAL MAGISTRATE
                  OF FIRST CLASS -II, CHENGANNUR


APPELLANT/S:

                SASI
                SANDHYA BHAVANAM VEEDU, PERINGALIPPURAM MURI,
                ENNAKKAD VILLAGE,, CHENGANNUR TALUK.

                BY ADVS.
                SRI.JOHN BRITTO
                SRI.C.A.RAJEEV

RESPONDENT/S:

                STATE OF KERALA
                REP. BY EXCISE INSPECTOR, CHENGANNUR EXCISE RANGE,
                THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA,
                ERNAKULAM.

                R1 BY PUBLIC PROSECUTOR

                PP SYLAJA S. L

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.584 OF 2006

                                    -2-




                         JUDGMENT

Dated this the 4th day of February 2021

Appellant challenges the conviction and sentence imposed

on him, by judgment dated 24.02.2006 in S.C No.226 of 2002 on the

files of the Additional District & Sessions Judge, Fast Track (Adhoc),

Mavelikara.

2. By the impugned judgment, the accused was found

guilty for the offence under Section 8(1) & (2) of the Abkari Act and

was sentenced to undergo rigorous imprisonment for a period of

three years and to pay a fine of Rs.1 lakh and in default of payment

of fine, to undergo rigorous imprisonment for one year.

3. The prosecution case was that on 15.01.2000, while the

Excise Inspector-PW1 was carrying out patrol duty, he received

information that the accused was keeping arrack in his house.

Pursuant to the said information, on searching the house CRL.A.No.584 OF 2006

belonging to the accused, PW1 found the accused pouring arrack

from a can into a plastic jug and therefore PW1 seized the arrack

and arrested the accused. Consequent to the investigation, the final

report was filed and on noticing a case exclusively triable by the

Court of Session, the learned Magistrate referred the case for trial

to the Court of Session and thereafter, the Session Judge made over

the case to the Additional Sessions Judge, Fast Track

(Adhoc),Mavelikara.

4. In order to prove the prosecution case, the prosecution

examined PWs1 to PW4 and marked Exts.P1 to P9 apart from

material objects MO1 and MO2. The defence examined DW1 and

marked Ext.D1.

5. After analyzing the evidence adduced in the case, the

learned Session Judge came to the conclusion that the accused was

guilty of the offences alleged and imposed sentence as mentioned

earlier.

6. Assailing the judgment of the learned Session Judge,

this appeal has been preferred, contending that the prosecution CRL.A.No.584 OF 2006

had failed to prove the guilt of the accused beyond reasonable

doubt.

7. I have heard Adv.John Britto the learned counsel for the

appellant as well as the learned Public Prosecutor Sri.M.R Dhanil.

8. Adv.John Britto the learned counsel for the appellant

canvassed a singular point for the purpose of convincing this Court

that the prosecution case ought to be thrown out in its entirety. He

invited the attention of this Court to the appendix of the judgment

and pointed out that the forwarding note having not been marked

in evidence before the trial court, the omission renders the

prosecution case to be discarded.

9. It is true that the appendix does not reflect marking of

any exhibit in the form of a forwarding note. For the purpose of

my satisfaction, I perused the records of the case also. The records

also shows that the forwarding note was not marked in evidence in

the trial court nor produced in court. It has been repeatedly held

by this Court in the decisions in Sadasivan @ Para v. State of

Kerala and another (2020 KHC 478) and Smithesh v. State of CRL.A.No.584 OF 2006

Kerala (2019 2 KLT 974 ) that the absence of forwarding note is

fatal to the prosecution case. In the aforesaid circumstances, no

further points are required to be considered to set aside the

conviction.

Accordingly, the conviction and sentence imposed by

judgment dated 24.02.2006 in S.C No.226 of 2002 on the files of the

Additional District & Sessions Judge, Fast Tract (Adhoc),

Mavelikara is hereby set aside. The accused is hereby acquitted.

The accused is set at liberty and the bail bond if any, furnished by

the accused shall stand cancelled. Fine amount, if remitted, shall

be refunded to the appellant.

The Criminal Appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS

JUDGE

JS