Thanseer vs State Of Kerala
2021 Latest Caselaw 10295 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.765 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 476/2004 DATED 31-03-2006 OF
   ADDITIONAL SESSIONS COURT, FAST TRACK III (ADHOC), MANJERI

AGAINST THE ORDER/JUDGMENT IN CP 90/2004 OF JUDICIAL MAGISTRATE OF
                      FIRST CLASS, NILAMBUR



APPELLANT/ACCUSED:

      1      THANSEER, S/O. ASHRAF,
             PATHUTHARA HOUSE,
             NILAMBUR AMSOM, CHANDAKKUNNU.

      2      MOHAMMED SHAFI, S/O.UBAID,
             PALLIPPADAN HOUSE,
             BANGLOW ROAD, CHANDAKKUNNU,
             NILAMBUR.

             BY ADV. SRI.P.SHAMSUDIN


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY THE SUB INSPECTOR OF POLICE,
             NILAMBUR
             THROUGH 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.765 OF 2006

                                   2



                                JUDGMENT

Dated this the 26th day of March 2021

The accused in S.C.No.476/2004 on the file of the

Additional Sessions Court, Fast Track III (Adhoc),

Manjeri have filed this appeal being aggrieved by the

judgment dated 31.03.2006, whereby they have been found

guilty of offence under Section 8(1)&(2) of the Abkari

Act and sentenced to undergo rigorous imprisonment for

a period of 4 years each and to pay a fine of

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

undergo simple imprisonment for a further period of 6

months each.

2. The case of the prosecution is that while the

Sub Inspector and his party were conducting vehicle

checking at about 11.30 p.m. at 07.08.2004, the accused

were found in an autorickshaw transporting 4 cans

containing arrack. Before the court below, prosecution

examined PW1 to PW8 and Exts.P1 to P15 were marked.

The material object (black cans 4 in Number) have been

produced. On the basis of the evidence on record, the CRL.A.No.765 OF 2006

court below found the appellants guilty of the offences

and imposed on them the sentence referred above.

3. Heard Sri.P.Shamsudin, on behalf of the

appellants and Smt.S.L.Sylaja learned Public Prosecutor

on behalf of the State.

4. It is contended by the counsel for the

appellants that the contraband articles were produced

before the court only on 09.08.2004, even though the

same were said to have been seized on 07.08.2004. The

delay in production of the contraband has not been

explained and it is not clear as to where the

contraband articles were kept in safe custody during

this period. It is also submitted that the forwarding

note does not contain the date on which the counter

signature of the Magistrate has been put and it does

not indicate the actual date of despatch of the sample

to the Chemical Examiner. It is also pointed out that

the document does not state the name of the Officer

with whom the sample is to be forwarded to the Chemical

Examiner.

CRL.A.No.765 OF 2006

5. I find considerable force in the contentions

raised by the counsel for the appellants. This Court

has held in Ravi v. Sate of Kerala [2018 (5) KHC 352]

that in the absence of explanation by the Investigating

Officer, even one day's delay in producing the

contraband before the court is fatal for the

prosecution. So also, it has been held by this Court

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

the failure to write the date on which the counter

signature of the Magistrate was put on the forwarding

note is fatal for the prosecution since there will be

no indication as to the exact date on which the sample

was despatched to the Chemical Examiner. This Court

has also held that in the 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.

[see Jayakumar v. State of Kerala (2018 KHC 3165)].

6. In the light of the above judgments, the

appellants are entitled to succeed in this appeal. In CRL.A.No.765 OF 2006

the result, the judgment dated 31.03.2006 in

S.C.No.476/2004 on the file of the Additional Sessions

Court, Fast Track III, (Adhoc) Manjeri is set aside.

The appellants are acquitted and set at liberty. The

bail bonds, if any, executed by the appellants or on

their behalf are cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn