Chandrahasa @ Chandu vs Station House Officer
2021 Latest Caselaw 10135 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.1985 OF 2006

   AGAINST THE ORDER/JUDGMENT IN SC 79/2003 DATED 11-10-2006 OF
        ADDITIONAL SESSIONS COURT (ADHOC-III), KASARAGODE

  AGAINST THE ORDER/JUDGMENT IN CP 381/2001 DATED 19-12-2002 OF
         JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD



APPELLANT/ACCUSED:

             CHANDRAHASA @ CHANDU
             S/O.NARAYANAN @ BABY,
             23/01, GUDDE VEEDU, HOSSANGADI,
             BANKARA MANJESHWAR VILLAGE.

             BY ADV. SRI.BALU TOM


RESPONDENTS/COMPLAINANT & STATE:

      1      STATION HOUSE OFFICER
             MANJESHWAR.

      2      STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             R1-2 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.1985 OF 2006

                                       2




                                 JUDGMENT

Dated this the 25th day of March 2021

The accused in S.C.No.79/2003 on the file of the

Additional Sessions Judge (Adhoc) III, Kasaragod has

filed this appeal being aggrieved by the judgment dated

11.10.2006, whereby he has been found guilty of offence

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

undergo simple imprisonment for a period of 4 years and

to pay a fine of ₹1,00,000/- and in default of payment

of fine to undergo simple imprisonment for a period of

6 months.

2. The case of the prosecution is that on

18.10.2001 at 6.20 p.m., the accused was found in

possession of 8 plastic bottles of 750 ml capacity

containing foreign liquor with a label, No.1 High way

fine whisky. Before the court below, the prosecution

examined PW1 to PW7 and Exts.P1 to P7 were marked. On

the basis of the evidence on record, the court below CRL.A.No.1985 OF 2006

found the accused guilty of offence and imposed the

sentence referred above.

3. Heard.

4. Even though several grounds have been taken in

the memorandum of appeal, on a perusal of the evidence

on record, I find that there are several infirmities in

the prosecution case. Ext.P5, which is the property

list produced, is seen to have prepared on the date of

occurrence of the offence ie; on 18.10.2001. But the

seized articles along with the property list has been

produced before the court only on 20.10.2001 as can be

seen from the seal of the Court affixed on Ext.P5.

The property list also contains an endorsement by the

Magistrate directing the Sub Inspector of Police to

keep the properties in safe custody. The endorsement

is seen to have been made on 22.10.2001. It has been

held by this Court in several judgments that the delay

in production of the contraband articles before the

court, if not explained, is fatal to the prosecution CRL.A.No.1985 OF 2006

case. [see Ravi v. State of Kerala (2018 (5) KHC 352),

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

Balachandran V. State of Kerala (2020 (3) KHC 697)].

5. The forwarding note produced as Ext.P6 is seen

to have been prepared on 19.10.2001 and it has been

produced before the Court on 20.10.2001. Even though

the document which is produced is a carbon copy, the

name of the Constable with whom the sample is to be

sent is seen to have been written in ink on a later

day. The Magistrate has counter signed the forwarding

note but there is no date written below the initials so

as to indicate the date of despatch of the sample to

the Chemical Examiner. The report of the Chemical

Examiner which has been produced as Ext.P7 would show

that the sample was forwarded along with a reference

letter dated 20.10.2001 of the Judicial First Class

Magistrate Court, Kasaragod, but the sample is seen to

have been received by the Examiner only on 13.11.2001,

24 days after the sample has been forwarded. There is

absolutely nothing in evidence to explain the delay in CRL.A.No.1985 OF 2006

the sample reaching the Chemical Examiner and so also

there is no evidence regarding the safe custody of the

sample between the dates 20.10.2001 & 13.11.2001. In

the above circumstances, this Court cannot conclude in

any manner that the prosecution has proved beyond any

reasonable doubt that the sample which is said to have

been collected at the scene of occurrence was the very

same sample which was received by the Chemical Examiner

for analysis and that too in a tamper proof condition.

[See Kumaran v. State of Kerala (2016 (4) KLT 718)].

6. In the above circumstances, the appellant is

entitled to succeed. The judgment dated 11.10.2006 in

S.C.No.79/2003 on the file of the Additional Sessions

Court (Adhoc) III, Kasargod is set aside. The

appellant is acquitted and set at liberty. The bail

bonds, if any, executed by the appellant or on his

behalf are cancelled. On 16.10.2006, this Court had

directed the appellant to deposit a sum of ₹10,000/-

before the trial court. The appellant is entitled to

refund of the said amount, for which he may approach CRL.A.No.1985 OF 2006

the trial court with proper application.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn