Sathyanesan vs State Of Kerala
2021 Latest Caselaw 10112 Ker

              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.1837 OF 2006

   AGAINST THE UDGMENT IN SC.NO.877/2001 DATED 02-09-2006 OF THE
  COURT OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT
                       CASES, NEYYATTINKARA


APPELLANT/ACCUSED:

              SATHYANESAN
              S/O.MARIA MIKHAEL,
              VADAKKE PONVILA PUTHEN VEEDU,
              ARAYOOR DESOM, CHENKAL VILLAGE,
              NEYYATTINKARA TALUK.

              BY ADVS.
              SRI.M.R.SARIN
              SRI.AJAYA KUMAR. G
              SRI.K.MOHANAKUMAR
              SRI.M.R.SASITH

RESPONDENT:

              STATE OF KERALA
              REP. BY DIRECTOR GENERAL OF PROSECUTION,
              HIGH COURT OF KERALA, ERNAKULAM.

              BY SMT. S.L. SYLAJA,PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1837 OF 2006

                                      2



                           JUDGMENT

Dated this the 25th day of March 2021

The accused in SC.No.877/2001 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 02.09.2006 whereby the appellant was found guilty of offences

under Section 55(a) of the Abkari Act and has been sentenced to

undergo rigorous imprisonment for a period of three years and to pay

of fine of Rs. 1 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 on 08.07.1998 at about

1.30 p.m, the Excise Special Squad and party while on patrol duty

found the accused in possession of 10 litres of arrack in a can. Before

the Court below, the prosecution examined PW1 to PW6 and Exts.P1

to P7 were produced. MO1 was produced and identified. On the basis

of the evidence on record, the Court below found the appellant guilty

of the offence charged against him and imposed the sentence referred

above.

3. Heard. Even though several contentions have been taken in

the memorandum of appeal, I find that the appellant is entitled to

succeed on the sole ground that the forwarding note which has CRL.A.No.1837 OF 2006

accompanied the sample sent to the chemical examiner has not been

produced, proved and marked by the prosecution. This Court has in

several judgments held that failure to produce, prove and mark the

forwarding note is fatal for the prosecution and it will 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].

In the light of the settled legal position and the facts of this case,

the judgment dated 02.09.2006 in SC.No.877/2001 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 canceled. The appeal stands allowed.

Sd/-

                                                T.R.RAVI
Sn                                                JUDGE