Divakaran vs State Of Kerala
2021 Latest Caselaw 10292 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                          CRL.A.No.941 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 751/2003 DATED 26-04-2006 OF
       ADDITIONAL SESSIONS COURT, FAST TRACK 1, ALAPPUZHA

 AGAINST THE ORDER/JUDGMENT IN CP 100/2003 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS, KAYAMKULAM



APPELLANT/ACCUSED:

             DIVAKARAN, S/O. KOCHUKUNJU,
             BABU BHAVANAM,
             KADAVUMKAL MURI,
             VALLIKKUNNAM VILLAGE.

             BY ADVS. SRI.S.SANAL KUMAR
                      SMT.BHAVANA V.


RESPONDENT/COMPLAINANT:

             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 26.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.941 OF 2006

                                  2



                            JUDGMENT

Dated this the 26th day of March 2021

The accused in S.C.No.751/2003 on the file of the

Additional Sessions Court, Fast Track I, Alappuzha has

filed this appeal being aggrieved by the judgment dated

26.04.2006, whereby he has been found guilty of offence

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

undergo rigorous imprisonment for a period of 3 years

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

payment of fine to undergo simple imprisonment for a

further period of 6 months.

2. The case of the prosecution is that on

07.02.2002 at about 6.30 p.m., the Preventive Officer

attached to the Excise Circle Office, Mavelikkara and

the Excise party who were on patrol duty, found the

accused carrying a can of 22 litre capacity and on

examining the can, it was found that it contained 20

litres of contraband wash prepared for the purpose of

distilling arrack. It is stated that the accused was

arrested at the spot. It is also stated that after CRL.A.No.941 OF 2006

taking the sample of the contraband article, the

balance wash was destroyed at the spot. Before the

court below, PW1 to PW5 were examined on the side of

the prosecution and Exts.P1 to P5 were marked. DW1 and

DW2 were examined on the side of the defence. MO1

being the black plastic can of 22 litre capacity was

produced and identified. On the basis of the evidence

on record, the court below found the accused guilty of

offence and imposed on him the sentence referred above.

3. Heard Smt.Bhavana V., learned counsel on behalf

of the appellant and Smt.S.L.Sylaja, learned Public

Prosecutor on behalf of the State.

4. The counsel for the appellant contended that

even though the case of the prosecution is that the

accused was arrested on the spot, the arrest memo has

not been produced before the court and the same is

fatal for the prosecution case. So also, it is pointed

out that the forwarding note produced as Ext.P4 does

not indicate the name of the Excise Guard, through whom

the sample was to be sent for chemical analysis. It is CRL.A.No.941 OF 2006

also pointed out that even though the date on which the

forwarding note is prepared is shown as 08.03.2004, no

date has been written below the initial of the

Magistrate so as to indicate the date on which the

forwarding note was counter signed by the Magistrate.

I find considerable force in the arguments advanced by

the counsel for the appellant.

5. This Court has in Ramankutty v. Excise

Inspector (2013(3) KHC 308) held that the failure to

produce the arrest memo is fatal for the prosecution

case since the prosecution has failed to prove that the

place and time of the arrest of the accused, as alleged

in the prosecution case. So also, in Kumaran v. State

of Kerala (2016 (4) KLT 718) this Court has held that

the failure to put the date below the initial of the

Magistrate, who has countersigned the forwarding note,

is fatal for the prosecution as the date of actual

despatch of the sample to the Chemical Examiner will

not be discernible. This Court has in Jayakumar v.

State of Kerala (2018 KHC 3165) held that in the CRL.A.No.941 OF 2006

absence of writing the name of the Officer with whom

the sample is to be sent for chemical examination, in

the forwarding note, the Thondi Clerk of the court

should have been examined.

6. In the light of the law declared by this Court,

the appellant is entitled to succeed in this appeal.

Hence, the judgment dated 26.04.2006 in S.C.No.751/2003

on the file of the Additional Sessions Court, Fast

Track I, Alappuzha 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.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn