Shaji vs State Of Kerala
2021 Latest Caselaw 321 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                         CRL.A.No.2354 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC 457/2005 OF ADDITIONAL DISTRICT
                 COURT (ADHOC)III, PATHANAMTHITTA

AGAINST THE ORDER/JUDGMENT IN CP 16/2005 OF JUDICIAL MAGISTRATE OF
                  FIRST CLASS -II,PATHANAMTHITTA


APPELLANT/S:

                SHAJI
                AGED 37 YEARS
                S/O.SREEDHARAN,KONNI HARISON MALAYALAM PLANTATION
                EAST, DIVISION NO.79, LAYEM, ARUVAPPULAM VILLAGE,,
                KOZHENCHERRY TALUK.

                BY ADV. SRI.C.B.SREEKUMAR

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
                KERALA, ERNAKULAM.

                R1 BY PUBLIC PROSECUTOR

                MAYA M N GP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2354 OF 2006

                                2




                         JUDGMENT

Dated this the 6th day of January 2021

The appellant challenges the conviction and sentence

imposed by judgment dated 17.11.2006 in SC No.457/2005 on

files of the Additional District and Sessions (Ad-hoc) Fast Track

Court-III, Pathanamthitta.

2. By the impugned judgment, the accused was found

guilty for the offence under Section 8(1) of the Kerala Abkari

Act (For short the Act) and was sentenced to undergo simple

imprisonment for one year and to pay of a fine of Rs.One lakh

and in default, to undergo simple imprisonment for three

months for the offence as mentioned above.

3. The prosecution case is that on 09.07.2003 at 5.30

p.m the accused was found in possession of 20 liters of arrack

in a plastic can, thereby committing the offence under Section

8(1) and (2) and Section 55 (a) of the Act. The offence was CRL.A.No.2354 OF 2006

detected by the Assistant Excise Inspector, Konni.

4. Pursuant to the final report alleging the commission

of offences as stated above, the case was committed to the

court of Session. In order to prove the prosecution case PWs 1

to 4 were examined and Exts.P1 to P10 were marked. The can

containing the arrack was marked as MO1. After analyisng the

prosecution case, the learned Sessions Judge found the accused

guilty of the offence under Section 8(1) of the Act and imposed

sentence of imprisonment and fine as mentioned earlier.

5. Challenging the conviction and sentence, this appeal

has been preferred.

6. I have heard the learned counsel for the appellant

and the learned Public Prosecutor.

7. On a perusal of the records of the case, it is seen that

the prosecution case suffers from two main infirmities. The

first infirmity is that the crime was detected by the Assistant

Excise Inspector. He was not a competent Officer under the

Abkari Act in 2003 to register a crime under the Abkari Act. CRL.A.No.2354 OF 2006

Only the Abkari Inspectors were authorised to register a crime

under the Act.

8. The second infirmity is that Ext.P7 is the original of

the requisition/forwarding note by which the sample taken

from MO1 was forwarded to the chemical examiner. It has

been held by this Court repeatedly, that absence of seal in the

forwarding note is fatal to the prosecution case. [Refer to

Balachandran Vs. State of Kerala (2020 (4) KLT 137) and

Sajeevan Vs. State of Kerala (2020 (6) KLT 53)]. In the

absence of the sample seal on the forwarding note, the sample

taken from the contraband seized could not be treated as the

one that was sent for analysis to the Forensic Laboratory. In

the absence of sample seal in the space provided in the

forwarding note, the sanctity and veracity of the sample sent

for analysis would be under doubt. In such circumstances, it

has been held that the benefit of doubt must be given to the

accused.

9. Since the Officer who detected and registered the CRL.A.No.2354 OF 2006

crime was not a competent Officer under the Abkari Act and

also since the sample seal was not affixed on the forwarding

note (Ext.P7), the prosecution case has no legs to stand and

accordingly, the accused is entitled to be acquitted.

In view of the above, the conviction and sentence

imposed upon the accused in SC No.457/2005 on the files of the

Additional District and Sessions (Ad-hoc) Fast Track Court-III,

Pathanamthitta) is set aside and the accused is set at liberty.

The bail bond furnished by the accused shall stand cancelled

and the fine amount if any remitted shall be refunded to the

accused.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS

JUDGE

JS