Suresh vs State Of Kerala
2021 Latest Caselaw 6431 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                       CRL.A.No.1226 OF 2006

 AGAINST THE JUDGMENT IN SC 159/2003 DATED 18-05-2006 OF IIIRD
               ADDITIONAL SESSIONS JUDGE, KOLLAM


APPELLANT/ ACCUSED :

            SURESH,
            S/O.PURUSHAN, VETTUVILANIYIL,
            MUZHANGODI MURI, THODIYOOR VILLAGE,
            KOLLAM DISTRICT

            BY ADV. SRI.B.MOHANLAL

RESPONDENT/ COMPLAINANT :

            STATE OF KERALA,
            REPRESENTED BY EXCISE RANGE INSPECTOR,
            KARUNGAPPALLY, KOLLAM DISTRICT
            THROUGH THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

            BY SENIOR PUBLIC PROSECUTOR SRI.P.K.BABU


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :
 CRL.A.No.1226 OF 2006

                                       2




                                 JUDGMENT

Dated this the 23rd day of February 2021

The accused in SC.No.159/2003 has preferred this appeal

challenging the conviction and sentence imposed by judgment dated

18.05.2006 on the files of the III rd Additional Sessions Judge, Kollam.

By the impugned judgment, the accused was found guilty for the

offence under Section 55(a) of the Abkari Act and was sentenced to

undergo rigorous imprisonment for two years and to pay a fine of

Rs.1,00,000/- in default of payment to undergo rigorous

imprisonment for six months.

2. The prosecution case was that on 15.06.2000, PW3, the

Excise Inspector detected spirit kept by the accused in his house.

The search revealed 35 litres of spirit kept in a black can by the

accused and concealed under his cot. After search, seizure and

arrest, a crime was registered. On completion of investigation, final

report was filed. The Magistrate on realising that the final report

revealed a case exclusively triable by the Court of Session,

committed the case for trial to the Sessions Court. CRL.A.No.1226 OF 2006

3. In order to prove the prosecution case, PWs 1 to 5

were examined and Exts.P1 to P9 were marked apart from MO1.

4. After analysing the evidence adduced in the case, the

learned Sessions Judge found the accused guilty and imposed the

sentence as mentioned earlier.

5. I have heard Adv.Mansoor Ali, the learned counsel for

the appellant on behalf of Adv.B.Mohanlal as well as the learned

Senior Public Prosecutor Adv.P.K.Babu.

6. Adv.Mansoor Ali in his arguments contended that a

solitary point alone is sufficient to throw away the prosecution case.

He submitted that in spite of Exts.P1 to P9 having been marked, the

prosecution failed to produce or mark the forwarding note in the

instant case. Relying upon the decisions in Sajeevan v. State of

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

Kerala and Another [2020 KHC 478] the learned counsel

submitted that the failure to produce and mark the forwarding note is

fatal to the prosecution case. He thus sought for acquittal of the

accused.

7. The learned Public Prosecutor opposed the contentions

and submitted that even in the absence of the forwarding note, the CRL.A.No.1226 OF 2006

prosecution case can be said to have been proved through the

evidence of Exts.P1 to P9 and the witnesses PWs 1 to 5.

8. I have considered the rival contentions. It is no longer

a matter of dispute that failure to mark the forwarding note

is fatal to the prosecution case. Reference is invited to the decisions

in Sajeevan's case (supra) and Sadasivan's case (supra).

A perusal of the documents marked as Exts.P1 to P9 shows that

the forwarding note has not been marked in evidence. In such an

instance, where the forwarding note is not brought out in evidence,

the link that connects the seizure of the contraband till it reaches

the forensic lab gets snapped. In such an instance the prosecution

story cannot be held to have been proved beyond reasonable doubt.

As submitted by the learned counsel for the appellant, the said failure

alone is sufficient to doubt the prosecution case. For the above

reasons, the accused is entitled to be acquitted.

In the above circumstances, the conviction and sentence

imposed on the appellant by judgment dated 18.05.2006

in SC.No.159/2003 on the files of the IIIrd Additional Sessions Judge,

Kollam is hereby set aside and the accused is acquitted. The bail

bonds, furnished if any, shall stand cancelled and the accused shall

be set at liberty forthwith. The fine amount, if any, remitted CRL.A.No.1226 OF 2006

shall be refunded without delay.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM