Vasantha vs State Of Kerala
2021 Latest Caselaw 7074 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                      CRL.A.No.1053 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 508/2000 DATED 05-04-2006 OF
    ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT(ADHOC)NO.IV,
                       THIRUVANANTHAPURAM

 AGAINST THE ORDER/JUDGMENT IN CP 26/2000 OF JUDICIAL FIRST CLASS
                  MAGISTRATE COURT -I, ATTINGAL


APPELLANT/ACCUSED:

             VASANTHA
             D/O.AMMU,
             THODIYAVILA VEEDU,
             CHIRAYINKEEZH.

             BY ADV. SRI.J.JAYAKUMAR

RESPONDENT/COMPLAINANT:

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

             BY SMT.SYLAJA, PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1053 OF 2006

                                 2

                           JUDGMENT

Dated this the 1st day of March 2021

The accused in S.C.No.508/2000 on the file of the

Additional Sessions Judge, Fast Track Court (Adhoc) IV,

Thiruvananthapuram is the appellant. The Court below by

judgment dated 05.04.2006 found the appellant guilty of

offence under Section 8 (1) and (2) of the Abkari Act and

sentenced him to undergo rigorous imprisonment for a period

of one year and to pay a fine of Rs.1 Lakh and in default of

payment of fine, to undergo rigorous imprisonment for a

further period of three months.

2. Heard Shri.J.Jayakumar on behalf of the appellant and

Smt.Shylaja, learned Public Prosecutor on behalf of the State.

3. The prosecution case is that during patrol duty, the

Preventive Officer, Excise Range Office, Chirayinkeezh saw the

accused holding a plastic can in suspicious circumstance. On

verification of the contents of the can, it was found that the 5

litre can contained 2½ liters of contraband arrack. The incident

is said to have happened at about 3 p.m on 21.11.1998. The

accused was arrested, the seizure mahazar was prepared in

the presence of independent witnesses; the accused along with CRL.A.No.1053 OF 2006

the 'thondi' articles and records were produced at the Excise

Range Office, Chirayinkeezh and the crime was registered.

Thereafter, the appellant was produced before the Judicial First

Class Magistrate's Court - I, Attingal, was remanded to Judicial

custody and thereafter released on bail.

4. After completion of the investigation, the Excise

Inspector laid charge sheet before the Judicial First Class

Magistrate's court - I Attingal and the learned Magistrate

committed the case to the Sessions Court,

Thiruvananthapuram as per order in CP.No.60/1998.

Thereafter, the case was made over to the Assistant Sessions

Court, Attingal and subsequently transferred to the Additional

Sessions Judge, Fast Track Court (Adhoc) IV,

Thiruvananthapuram.

5. The prosecution led evidence by examining PW1 and

PW2 who are the independent witnesses to the seizure

mahazar. PW3 who was the Preventive Officer patrol duty, PW4

who was the Preventive Officer who headed the patrol party

and PW5, the Excise Inspector, Chirayinkeezh, who conducted

the investigation of the case and filed charge sheet before

Court. Exts.P1 to P8 were marked and the 'thondi' was

produced as MO-1 and identified. It is seen from the appendix CRL.A.No.1053 OF 2006

to the judgment that MO-1 is a 5 litre damaged white plastic

jar. The trial court on the basis of the evidence on record

found the accused guilty and imposed the sentence aforesaid.

6. The main contention of the appellant is that Ext.P7

which was the forwarding note marked in evidence on the side

of the prosecution does not bear the specimen seal impression

of the seal used for sealing the samples without which it is not

possible to ascertain the genuineness of sample after

verification and due satisfaction. It is contended that the failure

to affix the the specimen seal on the samples will seriously

affect the link of the events constituting the offence, starting

from the seizure of the 'thondi' articles till it reaches at the

hands of the chemical analyst for verification.

7. I have verified the records of the case and I find

considerable force in the submissions made by the counsel for

the appellant. Ext.P7 forwarding note does not bear the

specimen seal impression of the seal on the sample. The

requirement of affixing of the specimen seal impression and

the consequence of such failure has been considered by this

Court in several judgments and is no longer res integra [See

Ravi v. State of Kerala [2018 (5) KHC 352],

Balachandran v. State of Kerala [2020 (3) KHC 697], CRL.A.No.1053 OF 2006

Smithesh v. State of Kerala [2019 (2) KLT 974],

Prakasan & another v. State of Kerala [2016 KHC 96]].

This Court has held that the above said failure will lead to a

finding that the prosecution has failed to prove beyond

reasonable doubt that the very sample taken at the spot of

occurrence had reached the chemical examiner for analysis, in

a tamper proof condition.

In the light of the law declared by this Court, on the facts

of this case, the appellant is entitled to the benefit of doubt

and thus succeed in the appeal. The judgment dated

05.04.2006 of the Court below in SC.No.508/2000 is set aside.

The appellant is acquitted and set at liberty. Bail bond if any,

executed by the appellant is cancelled. The appeal stands

allowed.

Sd/-

T.R.RAVI JUDGE Sn