Babu vs State Of Kerala
2021 Latest Caselaw 10766 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943

                         CRL.A.No.2505 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 672/2004 DATED 13-12-2006 OF
     ADDITIONAL DISTRICT & SESSIONS COURT(ADHOC)III, KOLLAM

AGAINST THE ORDER/JUDGMENT IN CP 99/2002 OF JUDICIAL MAGISTRATE OF
                    FIRST CLASS, SASTHAMCOTTA


APPELLANT/1ST ACCUSED:

             BABU, S/O. SHANMUGHAN,
             THUNDUMATTEL VEEDU,
             KIDAPRAM MURI,
             MANTROTHURUTHU VILLAGE,
             KOLLAM DISTRICT.

             BY ADV. SRI.B.MOHANLAL


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY THE EXCISE INSPECTOR,
             SASTHAMCOTTAH EXCISE RANGE,
             KOLLAM DISTRICT
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2505 OF 2006

                                          2



                                   JUDGMENT

Dated this the 30th day of March 2021

The 1st accused in S.C.No.672/2004 on the file of

the Additional District & Sessions Court, Adhoc III,

Kollam has filed this appeal being aggrieved by the

judgment dated 13.12.2006, whereby he has been found

guilty of offences under Section 55(a)&(i) of the

Abkari Act and sentenced to undergo simple imprisonment

for a period of 5 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

18.07.2001 at 4.30 p.m., the Excise party led by the

Excise Inspector, Kunnathoor Excise Circle Office found

accused 1 & 2 in possession of 50 litres of spirit in

two white plastic cans of 35 litres capacity and 480

litres of wash in 16 white cans of 35 litre capacity.

Before the court below the prosecution examined PW1 to

PW5 and Exts.P1 to P10 were marked. On the basis of CRL.A.No.2505 OF 2006

the evidence on record, the court below found the 1st

accused guilty of the offences and imposed on him the

sentence referred above. The 2nd accused was acquitted.

3. Heard Sri.B.Mohanlal, learned counsel on behalf

of the appellant and Smt.Sylaja, learned Public

Prosecutor on behalf of the State.

4. The main contention of the counsel for the

appellant is that even though the prosecution has

produced and marked the forwarding note as Ext.P9, the

forwarding note does not contain the impression of the

specimen seal used for sealing the sample, which was

sent for chemical analysis and the name of the officer

with whom the sample was sent for chemical examination.

5. I find considerable force in the contention

raised by the counsel for the appellant. On a perusal

of Ext.P9 forwarding note, I find that the impression

of the specimen seal has not been put in the forwarding

note. So also, the space for writing the name of the

Excise Guard has been left blank. The document is seen

to have been prepared by the Excise Inspector on

19.07.2001. Even though the Magistrate has CRL.A.No.2505 OF 2006

countersigned the document, no date is written below

the signature of the Magistrate to indicate the date on

which the sample was actually sent for chemical

analysis. Ext.P10, which is the report of the Chemical

Examiner shows that the sample was received only on

13.08.2001, almost one month after the date of the

forwarding note. There is no explanation forthcoming

as to the safe custody of the sample between the date

of the forwarding note and the date on which the sample

reached the Chemical Examiner. There is nothing on

record to indicate the date of actual despatch of the

sample to the Chemical Examiner. This Court has held

in several decisions that the failure to affix the

impression of the specimen seal used for sealing the

sample sent for chemical analysis 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)].

6. In Kumaran v. State of Kerala [2016 (4) KLT

718] this Court held that the failure to write the date CRL.A.No.2505 OF 2006

on which the Magistrate had initialled the forwarding

note is fatal for the prosecution, since it is not

possible to know the exact date on which the sample was

despatched to the Chemical Examiner. The failure to

state the name of the Officer with whom the sample is

to be sent for chemical examination is also fatal for

the prosecution. [See Jayakumar V. State of Kerala

(2018 KHC 3165)].

7. In the light of the above settled legal

position, the appellant is entitled to succeed in this

appeal. In the result, the judgment dated 13.12.2006

in S.C.No.672/2004 on the file of the Additional

District & Sessions Court, Adhoc III, Kollam 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