Ponnamma vs State Of Kerala
2021 Latest Caselaw 10113 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.1832 OF 2006

  AGAINST THE JUDGMENT IN SC.NO.191/2001 DATED 30-08-2006 OF THE
    COURT OF ADDITIONAL SESSIONS JUDGE, (ABKARI) KOTTARAKKARA.


APPELLANT/ACCUSED:

             PONNAMMA
             D/O.RAHEL, EBI BHAVAN,
             ERATHUKULAKKADA MURI,
             KALAYAPURAM VILLAGE,
             KOTTARAKKARA TALUK.

             BY ADVS.
             SRI.KURIAN GEORGE KANNAMTHANAM (SR.)
             SRI.THOMAS GEORGE

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             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.1832 OF 2006

                                   2



                          JUDGMENT

Dated this the 25th day of March 2021

The accused in SC.No.191/2001 on the file of the Court

of Additional Sessions Judge (Abkari), Kottarakkara has filed

this appeal, being aggrieved by the judgment dated

30.08.2006 whereby the appellant was found guilty of

offences under section 55(a) and (i) of the Abkari Act and has

been sentenced to undergo simple imprisonment for six

months and to pay of fine of Rs. 1 lakh and in default of

payment of fine, to undergo simple imprisonment for a

further period of three months.

2. The case of the prosecution is that on 04.03.1998 at

3.00 p.m, the accused was found in possession of 1½ litres of

arrack in a five litre black can, for the purpose of sale. Before

the Court below, the prosecution examined PW1 to PW6 and

Exts.P1 to P5 were produced and marked. 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.

CRL.A.No.1832 OF 2006

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 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 30.08.2006 in SC.No.191/2001

on the file of the Court of Additional Sessions Judge (Abkari),

Kottarakkara is set aside. The appellant is acquitted and set CRL.A.No.1832 OF 2006

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

his behalf are canceled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Sn