Kerala High Court
Thulaseedharan vs State Of Kerala on 29 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
CRL.A.No.2305 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 499/2006 OF ADDITIONAL DISTRICT &
SESSIONS COURT (ADHOC) FAST TRACK III, PATHANAMTHITTA
APPELLANT/ACCUSED:
THULASEEDHARAN,
S/O. PADMANABHAN, AGED 58 YEARS
BINDU BHAVAN VEEDU,
VETTIKULAM COLONY,
KODUMON VILLAGE, ADOOR.
BY ADV. SRI.JIJI MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY SR.PUBLIC PROSECUTOR SRI.P.K. BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2305 OF 2007
2
JUDGMENT
Dated this the 29th day of March 2021
The accused in S.C.No.499/2006 on the file of the
Additional District & Sessions Court (Adhoc) Fast Track
III, Pathanamthitta has filed this appeal being
aggrieved by the judgment dated 30.10.2007, whereby he
has been found guilty of offence under Sections 55(a)
and 8(1)&(2) 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 rigorous imprisonment for a further
period of 6 months.
2. The case of the prosecution is that on
07.07.2000 at 9.00 p.m., the accused was found in
possession of arrack in 202 white plastic covers of 100
ml capacity each and a sealing machine used for sealing
the same, in his house at Vettikkulam colony. Before
the court below, the prosecution produced Exts.P1 to
P14 and PW1 to PW8 were examined. On the side of the
defence, DW1 was examined and Exts.D1 to D4 were
CRL.A.No.2305 OF 2007
marked. 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.
4. Even though several contentions are taken in
the memorandum of appeal, I find several infirmities in
the prosecution case entitling the appellant to be
acquitted. Ext.P1 is the extract of the thondy
register and Ext.P8 is the thondy list. Even though
the thondy list is dated 08.07.2000, it is seen that
the same was produced before the court only on
14.07.2000, 7 days after the detection of the offence.
There is no explanation forthcoming regarding the delay
of 7 days in producing the contraband articles before
the court. This Court has in several decisions held
that in the absence of explanation even one day's delay
is fatal for the prosecution case (see Ravi v. State of
Kerala [2018 (5) KHC 352]). Ext.P10 is the forwarding
note, which is seen to have been prepared on
08.07.2000. The document does not show the name of the
CRL.A.No.2305 OF 2007
officer with whom the sample is to be sent for chemical
examination. So also, the date on which the Magistrate
has counter signed the forwarding note is not stated.
The space provided for affixing the impression of the
specimen seal used for sealing the sample is left
blank. This Court has held that the failure to affix
the impression of the specimen seal is fatal for the
prosecution. (see Ravi v. State of Kerala (2018 (5) KHC
352), Balachandran V. State of Kerala (2020 (3) KHC
697) & Smithesh V. State of Kerala (2019 (2) KLT 974).
So also, this Court has held that the failure to state
the name of the Officer with whom the sample is to be
sent for chemical examination and the failure to write
the date on which the Magistrate has countersigned the
forwarding note are also fatal to the prosecution case.
[See Jayakumar v. State of Kerala (2018 KHC 3165) &
Kumaran v. State of Kerala (2016 (4) KLT 718)]. This is
all the more relevant since the chemical analysis
report shows that the sample was received through one
M.K.Bose, Excise Guard only on 05.06.2001, which is
CRL.A.No.2305 OF 2007
almost one year after the alleged offence. The above
facts leads to the conclusion that the prosecution has
miserably failed to prove beyond any reasonable doubt
that the sample which was allegedly taken at the scene
of occurrence had reached the Chemical Examiner for
analysis in a tamper proof condition.
6. In the above circumstances, the appellant is
entitled to succeed in this appeal. In the result, the
judgment dated 30.10.2007 in S.C.No.499/2006 on the
file of the Additional District & Sessions Court
(Adhoc) Fast Track III, Pathanamthitta 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
