Kerala High Court
Divakaran vs State Of Kerala on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942
CRL.A.No.1552 OF 2006
AGAINST THE JUDGMENT IN SC 977/2001 DATED 13-07-2006 OF
ADDITIONAL DISTRICT COURT (ADHOC-I), KOLLAM
APPELLANT/ ACCUSED :
DIVAKARAN,
S/O RAGHAVAN, CHIRAVILA KIZHAKKATHIL VEEDU,
KIZHAVOOR CHERRY,
THAZHUTHALA VILLAGE.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/ COMPLAINANT :
STATE OF KERALA,
REP.BY THE S.I. OF POLICE,
KOTTAYAM POLICE STATION,
(CRIME NO.223/2000),
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR ADV.P.K.BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1552 OF 2006
2
JUDGMENT
Dated this the 24th day of February 2021
The appellant was convicted for the offence under Section
55(a) of the Abkari Act. He was sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.1,00,000/- in
default to undergo simple imprisonment for a period of one year.
2. The prosecution alleged that on 11.06.2000, at 5.30
p.m., the accused was found in possession of 5 litres of arrack in 50
polythene covers containing 100 ml. each. After arresting the
accused and seizing the contraband, investigation was initiated.
After final report was filed, the case was committed to the Sessions
Court.
3. In order to prove the prosecution case, PWs 1 to
4 were examined and Exts.P1 to P8 were marked apart from MOs 1
and 2. The Sessions Court, after analysing the evidence adduced
convicted the accused and imposed the sentence mentioned earlier.
4. Adv.C.Rajendran, the learned counsel for the appellant
and Adv.P.K.Babu, the learned Senior Public Prosecutor were heard.
5. The solitary point that was canvassed by the learned
counsel for the appellant was that the forwarding note was not
CRL.A.No.1552 OF 2006
marked in evidence or produced before the trial court. Referring to
the decisions of this Court, the counsel argued that this is a fit case
for acquittal.
6. It has been held in Smithesh v. State of Kerala
[2019 (2) KLT 974], Sajeevan v. State of Kerala [2020 (6) KLT
53] and Sadasivan @ Para v. State of Kerala and Another
[2020 KHC 478] that absence of forwarding note is fatal to the
prosecution case. On a perusal of the documents marked in
evidence, I find that the learned counsel for the appellant is correct
in his submission that the forwarding note has not been marked. In
such circumstances, the accused is entitled to be acquitted.
7. In the above circumstances, I set aside the conviction
and sentence imposed on the accused by judgment dated
13.07.2006 in SC.No.977/2001 on the files of the Additional Sessions
Judge (Ad hoc-I), Kollam and acquit the accused. The bail bonds,
furnished if any, shall stand cancelled and the fine amount, if
remitted shall be refunded forthwith.
Criminal Appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
