Kerala High Court
Mohanan vs State Of Kerala on 25 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942
CRL.A.No.2023 OF 2006
AGAINST THE JUDGMENT DATED 04-10-2006 IN SC 325/2005 OF
ADDITIONAL SESSIONS COURT (AD HOC), FAST TRACK COURT NO.III,
PATHANAMTHITTA
APPELLANT/ ACCUSED :
MOHANAN, S/O. RAJAN,
ATHIRALAYAM VEEDU, THENGAMOM,
PALLIKKAL VILLAGE, ADOOR.
BY ADVS.
SRI. K.SHAJ
SRI.B.BALRAJ
SRI.SAJJU.S
RESPONDENT :
STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY SENIOR PUBLIC PROSECUTOR SRI.P.K.BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2023 OF 2006
2
JUDGMENT
Dated this the 25th day of February 2021
The accused in SC.No.325/2005 on the files of the
Additional Sessions Court (Ad hoc), Fast Track Court No.II,
Pathanamthitta is the appellant. He was convicted for the offence
under Section 8(2) of the Abkari Act and was sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
Rs.1,00,000/- in default to undergo the sentence of six months.
2. The prosecution case was that on 22.08.2003, at about
11.30 a.m., the accused was found possessing 3 litres of spirit in a
can. The offence was detected by the Assistant Excise Inspector,
pursuant to which crime was registered and investigation carried out
and the final report filed.
3. Adv.K.Shaj and Adv.Renjith George, the learned
counsel for the appellant submitted that two crucial points alone are
sufficient to acquit the accused in the instant case. He referred
primarily, to the absence of a forwarding note produced or marked by
the prosecution and as the secondary contention, he submitted that
in the instant case, it was the Assistant Excise Inspector, who had
CRL.A.No.2023 OF 2006
detected and registered the crime though he was not an authorised
inspector to detect or register a crime in 2003.
4. Having regard to the nature of the offence and the
evidence adduced, it is seen that what has been marked as Ext.P10
is a letter forwarding the material object in the case. The forwarding
note is curiously absent. A letter issued by the learned Magistrate to
the Sessions Court, forwarding the material objects alone is marked
in evidence. The forwarding note contemplates a document prepared
at the time of taking samples with the seal affixed. It creates a link
between the sampling and the testing of the sample. Any break in
the link is fatal to the prosecution case as the accused is entitled to
the benefit of doubt. In the instant case, since the forwarding note is
not marked in evidence, its absence becomes fatal to the
prosecution, as held by this Court 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]. The accused is thus entitled to the benefit of
doubt.
5. Even the contention regarding the absence of authority
for the Assistant Excise Inspector to effect seizure or to arrest the
accused is no longer a matter in dispute. It has been held in Parathi
CRL.A.No.2023 OF 2006
Sasidharan v. State of Kerala [2012 (2) KLT 392] and in several
other decisions that prior to 2009, the Assistant Excise Inspector did
not have the authority to arrest an accused or to seize the
contraband materials under the Abkari Act. In the instant case, the
prosecution case fails on this ground also.
Accordingly the conviction and sentence imposed upon the
accused in SC.No.325 of 2005 on the files of the Additional Sessions
Court (Ad hoc), Fast Track Court No.II, Pathanamthitta is set aside
and the accused is acquitted. The bail bonds, if any furnished, shall
be cancelled. The fine amount, if remitted shall be refunded
forthwith.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
