Kerala High Court

Kumaran vs State Of Kerala on 22 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                      CRL.A.No.1250 OF 2006

AGAINST THE JUDGMENT IN SC 237/2003 DATED 08-06-2006 OF ADDITIONAL
        SESSIONS COURT, FAST TRACK COURT NO.III, PALAKKAD


APPELLANT/ACCUSED:

             KUMARAN, S/O. KANDAPPAN,
             NEDUMKANDATHIL HOUSE,, KURUVATHUR DESOM,
             VELLINEZHI VILLAGE,, OTTAPALAM TALUK.

             BY ADVS.
             SRI.PHILIP T.VARGHESE
             SRI.THOMAS T.VARGHESE

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM,
             REPRESENTING THE EXCISE INSPECTOR,
             EXCISE RANGE OFFICE, CHERPULASSERY.

             BY SMT.S.L.SYLAJA, PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1250 OF 2006

                                    2

                                 JUDGMENT

Dated this the 22nd day of February 2021

The appellant is the accused in Sessions Case No.237 of

2003 on the files of the Additional Sessions Judge, Fast Track Court

No.III, Palakkad. The above case is charge sheeted against the

appellant alleging offences punishable under Sections 55(a) and

(g) and Section 8(1) and (2) of the Abkari Act.

2. The prosecution case is that on 05.06.1998, the

Excise Inspector, Excise Range Office, Cherpulassery together with

Excise party was on patrol duty within the local limits of his excise

range. While so, he received reliable information that the accused

is illegally manufacturing alcohol. He proceeded to the house of

the accused after complying the formalities in accordance with the

Abkari Act. It is alleged that the Excise party found the accused

pouring illicit arrack contained in a can of capacity 5 litres into a

bottle of capacity 750ml, sitting in a thatched shed adjoining to

the kitchen of the said house. The Excise Inspector immediately

caught the accused. On inspection, he found about 2 ½ liters of

illicit arrack in the can and about 300 ml of illicit arrack in the

bottle. On further search of the said shed, he found other vessels

and implements used for manufacturing illicit arrack. Hence, it is CRL.A.No.1250 OF 2006

alleged that the accused committed the aforesaid offences.

3. To substantiate the case, prosecution examined

PW1 to PW6. Exts.P1 to P8 were marked on the side of the

prosecution. MO1 to MO5 are the material objects. After going

through the evidence and the documents, the trial court found

that the accused committed the offence under Section 55(a) of the

Abkari Act. The accused is sentenced to undergo rigorous

imprisonment for a period of two years and to pay a fine of

Rs.1,00,000/-. In default of payment of fine, the accused is

directed to undergo simple imprisonment for a further period of six

months. Aggrieved by the conviction and sentence, this Criminal

Appeal is filed.

4. Heard the learned counsel for the appellant and

the learned Public Prosecutor.

5. The counsel for the appellant submitted that

Ext.P7 forwarding note is silent with regard to the name of the

person through whom sample was forwarded to the analyst. The

counsel relied judgment of this court in Kumaran v. State of

Kerala [2016(4) KLT 718]. The counsel also submitted that as

per Ext.P7 forwarding note, the sample was despatched on

05.06.1998. A perusal of Ext.P8 analysis report will show that the

sample was received by the Excise guard K.N.Narayanan Nair on CRL.A.No.1250 OF 2006

16.06.1998, who was in custody of the sample from 05.06.1998 till

16.06.1998. It is not explained by the prosecution. The counsel

submitted that the appellant is entitled to the benefit of doubt.

6. The Public Prosecutor submitted that there is oral

and documentary evidence to prove the case and this Court may

not acquit the accused on technical grounds.

7. The point for consideration in this case is whether

the accused committed offence under Section 55(a) of the Abkari

Act.

8. Admittedly, the forwarding note is silent with

regard to the name of the person with whom the sample is sent.

That portion is seen unfilled in Ext.P7 forwarding note. If that be

so, the benefit of doubt will go to the accused. In this case, the

thondy clerk or the person who took the sample to the Analyst are

not examined. This Court in Kumaran v. State of Kerala [2016 (4)

KLT 718] held as follows:

"There is yet another reason to grant benefit of doubt to the

revision petitioner, which is stated hereunder. Ext.P9 is the copy of

the forwarding note whereby the sample was forwarded to the

chemical examiner. The copy of the forwarding note is silent with

regard to the name of the person with whom the sample was sent

for analysis. Ext.P4 Certificate of chemical analysis would show that

the sample was received in the laboratory through the Excise Guard CRL.A.No.1250 OF 2006

Sri. Dinesan on 2.8.2007. It is not discernible as to why the space

meant for writing the name of the Excise Guard/Preventive Officer,

with whom the sample was sent, remained vacant in Ext.P9 copy of

the forwarding note. This would give an indication that even at the

time when the learned Magistrate put the initial in the copy of the

forwarding note, it was not decided as to with whom the sample had

to be sent to the laboratory for analysis. It is also not discernible

from Ext.P9 as to when the learned Magistrate put the initial in the

forwarding note. The learned Magistrate ought to have written the

date on which the initial was made, which is normally expected in a

case like this. However, since the date was not written by the

learned Magistrate when the initial was made, it is not clear from

Ext.P9 as to how many days before the despatch of the sample, the

learned Magistrate put the initial in Ext.P9. This becomes relevant,

particularly when the space meant for writing the name of the

Excise Guard/Preventive Officer with whom the sample was sent,

remained vacant in Ext.P9 copy of the forwarding note. In such a

situation, it was imperative for the prosecution to examine the

thondy clerk of the court or the Excise Guard concerned to prove

the tamper-proof despatch of the sample to the laboratory.