Manoharan @ Manu vs State Of Kerala
2021 Latest Caselaw 10580 Ker

             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.2072 OF 2006

   AGAINST THE ORDER/JUDGMENT IN SC 400/2002 DATED 29-09-2006 OF
  ADDITIONAL SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM

 AGAINST THE ORDER/JUDGMENT IN CP 115/2001 OF JUDICIAL MAGISTRATE
                   OF FIRST CLASS -II, ATTINGAL



APPELLANT/ACCUSED:

             MANOHARAN @ MANU
             S/O.CHELLAPPAN,
             KUNNUMPURATHU VEEDU,
             VELUTHAPARA,
             NELIANADU VILLAGE.

             BY ADV. SRI.M.DINESH


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             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.2072 OF 2006

                                    2



                             JUDGMENT

Dated this the 29th day of March 2021

The accused in S.C.No.400/2002 on the file of the

Additional Sessions Court, Fast Track III,

Thiruvananthapuram has filed this appeal being

aggrieved by the judgment dated 29.09.2006, whereby he

has been found guilty of offence under Section 8(1) &

(2) of the Abkari Act and sentenced to undergo simple

imprisonment for a period of one year 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 3

months.

2. The case of the prosecution is that on

16.04.1999 at about 10.30 a.m., PW3, the Preventive

Officer attached to Vamanapuram Range Office along with

PW4, another Preventive Officer, who were on patrol

duty, found the accused in possession of 2 litres of

arrack in a can of 5 litre capacity. The case is that

the accused was arrested on the spot, the contraband

was sealed and label was affixed, the signature of the CRL.A.No.2072 OF 2006

accused and the witnesses were obtained and the

contraband was produced in court. Before the court

below the prosecution examined PW1 to PW6 and Exts.P1

to P8 were marked. On the basis of the evidence on

record, the court below found the appellant guilty of

the offence charged and imposed on him the sentence

referred above.

3. Heard Sri.Dinesh M., learned counsel on behalf

of the appellant and Sri.P.K.Babu, learned Senior

Public Prosecutor on behalf of the State.

4. The counsel for the appellant points out that

there are several infirmities in the prosecution case.

It is contended that the forwarding note which has been

produced and marked in the case does not bear the

impression of the specimen seal used for sealing the

sample that was sent for chemical examination and for

that sole reason the appellant is entitled to succeed.

It is further stated that no sample was collected from

the scene of occurrence. There is no evidence

forthcoming regarding the manner in which the sample CRL.A.No.2072 OF 2006

was taken, as to when the sample was taken and who took

the sample. The counsel points out that these are

material aspects which need to be proved by the

prosecution, failing which the appellant is entitled to

succeed.

5. I find that the contention raised by the

appellant is justified. Ext.P7 is the thondy list

along with which the contraband article is said to have

been produced before the court. A perusal of Ext.P7

would show that the thondy articles were produced on

17.04.1999 and that the same were returned to the

Excise Office, Vamanapuram on 17.04.1999 itself. It is

not clear from Ext.P7 whether the sample was taken at

that point of time. Ext.P6 is the forwarding note.

The said document does not bear any date. Even though

the Magistrate has initialled on it, no date is written

along with the initial of the Magistrate. The space

provided for affixing the impression of the specimen

seal used for sealing the sample is left blank. Thus

Exts.P6 & P7 do not really serve any purpose regarding CRL.A.No.2072 OF 2006

proof of taking of sample, sealing of the sample and

despatch of the sample in a tamper proof condition.

Ext.P8 is the report of the Chemical Examiner which

would show that the sample was received by the Chemical

Examiner only on 05.06.1999, which is almost 1½ months

after the production of the thondi articles before the

court. This Court has held that the failure to affix

the impression of the specimen seal used for sealing

the sample on the forwarding note 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 failure to write the

date on which the Magistrate has counter signed the

forwarding note so as to indicate the date of despatch

of the sample is also fatal for the prosecution. (See

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

6. In the circumstances of the case, the appellant

is entitled to succeed in this appeal. Hence the

judgment dated 29.09.2006 in S.C.No.400/2002 on the CRL.A.No.2072 OF 2006

file of the Additional Sessions Court, Fast Track III,

Thiruvananthapuram 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 30.10.2006, this Court had directed the

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

amount before the trial court. The appellant will be

entitled to refund of the said amount on filing proper

application before the court below.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn