Vijayakumar vs The State Of Kerala
2021 Latest Caselaw 10046 Ker

Crl.A.No.1982/2006                 1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE MR. JUSTICE T.R.RAVI

   THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                        CRL.A.No.1982 OF 2006

   AGAINST THE JUDGMENT IN SC 62/2001 OF ADDITIONAL SESSIONS
       COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA

      CP 81/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III,
                          NEYYATTINKARA


APPELLANT/ACCUSED:

                VIJAYAKUMAR
                S/O.THANKAPPAN, KALAYIL PUTHENVEEDU,
                KUTHIRAVATTOM,, KULAVILA, MANKODU DESOM,
                VILAVANCODE TALUK,, KANYAKUMARI DISTRICT.

                BY ADVS.
                SRI.R.T.PRADEEP
                SRI.V.VIJULAL

RESPONDENT/COMPLAINANT:

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

                BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1982/2006                2




                             JUDGMENT

Dated this the 25th day of March, 2021

The accused in SC.No.62/2001 on the file of the Court of the

Additional Sessions Judge for the trial of Abkari Act Cases,

Neyyattinkara, has filed this appeal, being aggrieved by the

judgment dated 20.09.2006 whereby the appellant was found

guilty of offence under Section 58 of the Abkari Act and

sentenced to undergo rigorous imprisonment for a period of three

years and to pay of fine of Rs. 1,00,000/- (one lakh) and in

default of payment of fine, to undergo rigorous imprisonment for

a further period of six months.

2. The case of the prosecution is that the Sub Inspector of

Police, Vellarada Police Station, on 6.11.1999 at about 5 pm,

while on patrol duty got information that arrack is being sold in

an incomplete shop building belonging to one Nadesa Panicker. He

proceeded to the spot and found the accused engaged in sale of

arrack. It is stated that two cans, one of 10 litre capacity filled

with arrack and another of 5 litre capacity filled with 4 litres of

arrack found in the possession of the accused. The contraband

was seized. It is the specific case that the entire contraband

articles were produced before the Court on 8.11.1999 since

7.11.1999 was a Sunday.

3. Exts.P1 to P6 were marked on the side of the

prosecution and PW1 to PW5 were examined. On the basis of the

evidence on record the court below found the accused guilty and

imposed the sentence referred above.

4. Heard Sri R.T.Pradeep on behalf of the appellant and

Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the State.

5. The counsel for the appellant contended that the

prosecution case has to fail for the sole reason that the

forwarding note was not produced and marked in evidence. Apart

from that he also contends that no arrest memo has been

produced, even though the specific case of the prosecution is that

the accused was arrested at the scene of occurrence of the

offence. Another contention that is taken is that there is no

evidence regarding the manner in which the sample was taken

and how it was forwarded to the Chemical Examiner, particularly

since the sample has been taken from the court. I find

considerable force in the submissions made by the counsel for the

appellant.

6. This Court has in several decisions held that the failure

to produce and mark the forwarding note would lead to a

situation where it cannot be held that the prosecution has proved

beyond reasonable doubt that the very same sample which was

taken at the spot of occurrence had reached the Chemical

Examiner for analysis in a tamper proof condition. (see

Unnikrishnan Nair v. State of Kerala [2020 (3) KHC 455];

Sadasivan @ Para v. State of Kerala [2020 KHC 478].

7. In the judgment in Baby v. State of Kerala, reported

in [2020 KLT 590], this Court had held that the drawing of the

sample is to be done by the Investigating Officer and not by the

court. This Court has held that the role of the court is only after

the final report is filed before the Court and the pre-trial steps.

Reference is made to Sections 50 and 50(a) of the Abkari Act

which provide that the Abkari Officer, after completion of the

investigation, shall forward a report in accordance with sub-

section (2) of Section 173 of the Code of Criminal Procedure, to a

Magistrate empowered to take cognizance and that on receipt of

such final report, the Magistrate shall inquire into such offence

and commit to the Court of Sessions, if the offence is exclusively

triable by the said court. This Court in the above decision held

that the court has absolutely no role at the stage of investigation

and if the court finds that thondi articles are produced without

drawing the sample, what is appropriate is to return the same to

the Investigating Officer for the purpose of taking of sample.

8. In the case on hand, it is seen that PW5 who was the

Thondi Clerk at the relevant point of time was examined to state

about the collection of the sample. PW5 has stated that she had

taken the sample on orders of the Magistrate in two bottles. No

further details are stated either regarding the breaking open of

the seal which was already there in the seized article or regarding

the sealing of the thondi article after drawing the sample and that

of the sample which had been drawn. Even if a Thondi Clerk was

authorised to take sample on direction by the Magistrate, I am of

the opinion that the same has to be done only in the presence of

the Investigating Officer and the accused, which alone will ensure

fairness in action.

9. Regarding failure to produce, prove and mark the

arrest memo, this Court has held that it would create suspicion

regarding the arrest of the accused at the time and place alleged

by the prosecution and that when the arrest of the accused on

the spot is not proved the prosecution case will fall to the ground

(See Ramankutty v. Excise Inspector 2013(3) KHC 308).

10. As already stated, there is no forwarding note produced

and marked. Ext.P5, which is the report of the Chemical

Examiner would show that two bottles which were sealed were

received on 16.12.1999 along with a reference letter from the

Magistrate. There is no other document which shows anything

about sample being collected and sealed. The report says that the

seals on the bottle were intact and sample seal provided.

However, the prosecution has no case that any sample seal was

provided and even if they have such a case, there is nothing on

record to show that such sample seal was provided. In the above

circumstances, I find that the prosecution has failed to prove

beyond any reasonable doubt that the sample which was

analysed by the Chemical Examiner was a representative sample

of the thondi articles which are alleged to have been seized from

the accused and produced before Court along with Ext.P4 thondi

list.

11. In the light of the settled legal position and on the facts

of the case, the appellant is entitled to succeed. The judgment

dated 20.09.2006 in SC.No.62/2001 on the file of the Court of the

Additional Sessions Judge for the trial of Abkari Act Cases,

Neyyattinkara is set aside. The appellant is acquitted and set at

liberty. Bail bonds if any executed by the appellant or on his

behalf are cancelled.

12. On 13.10.2006, this Court had directed the appellant to

deposit a sum of Rs.5,000/- out of the fine amount before the

trial court. The appellant is entitled to refund of the same

amount, for which he may prefer appropriate petition before the

court below.

The appeal is allowed as above.

Sd/-

T.R.RAVI, JUDGE

dsn