Unnikrishnan vs State Of Kerala
2021 Latest Caselaw 7080 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.2964 OF 2008

 AGAINST THE ORDER/JUDGMENT IN SC.NO.159/2005 DATED 02-12-2008 OF
  ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) COURT-I , KOLLAM



APPELLANT/ACCUSED:

             UNNIKRISHNAN,
             S/O RAMACHANDRAN PILLAI,
             MINI NIVAS,
             ANAYADI MURI,
             SOORANADU VILLAGE,
             KUNNATHOOR TALUK.

             BY ADVS.
             SRI.T.GOPALAKRISHNAN
             SMT.THASNIM M.A.

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP.BY THE EXCISE INSPECTOR,
             SASTHAMKOTTA RANGE,
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF, KERALA
             (CRIME NO.49/2002 OF EXCISE RANGE, SASTHAMKOTTA).

             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.2964 OF 2008

                                  2



                             JUDGMENT

Dated this the 1st day of March 2021

The accused in SC.No.159/2005 on the file of the Additional

District and Sessions Judge Court (Adhoc) I, Kollam has filed this

appeal aggrieved by the judgment dated 02.12.2008 whereby he has

been found guilty of having committed the offences under Sections

8(1) and 8(2) of the Abkari Act and convicted and sentenced him to

undergo rigorous imprisonment for a period of one year and to pay a

fine of Rs.1 Lakh.

2. The case of the prosecution is that, on 28.05.2002 the

accused was found to be transporting 1½ litres of arrack. He was

arrested and produced before the Judicial First Class Magistrate Court,

Sasthamkotta and was remanded to judicial custody. He was released

on bail as per order dated 25.06 2002 of the Court of Sessions Judge,

Kollam in Crl.M.P.No.912/2002. The investigation was completed and

the charge was laid before the Judicial First Class Magistrate's Court,

Sasthamkotta on 07.11.2003. The case was committed to the Court of

Sessions, Kollam as per order dated 07.04.2004 in C.P.No.157/2003.

The Sessions Judge made over the case to Principle Assistant Sessions

Judge for trial and disposal, from where the case was transferred to the CRL.A.No.2964 OF 2008

Additional District and Sessions Judge (Adhoc) IV, Kollam.

3. During trial, the attestor of Ext.P1 seizure mahazer who

was examined as PW1, turned hostile. The Preventive Officer, Excise

Range Office, Sasthamkotta was examined as PW2. PW4 is the

Preventive Officer in charge of Excise Office, Sasthamkotta who

received the accused, property and records brought by PW2 and

registered Ext.P4 occurrence report. PW6 who investigated the crime

expired before the trial of the case. The Court below considered the

evidence on record and oral evidence of the witnesses and found the

accused guilty and convicted and sentenced him as stated above.

Aggrieved by the judgment, the accused has come up with this appeal.

4. According to the accused, no sample was taken from the

spot or in the presence of the accused. Curiously, it is seen from the

judgment that what is marked as MO1 is the entire 'thondy' seized

without reducing the volume of 200ML which was allegedly taken as

sample. On verification of the records, I find that Ext.P7 which was

marked as the forwarding note by which the sample was sent to the

Chemical Examiner does not bear the specimen seal affixed 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 CRL.A.No.2964 OF 2008

of Kerala 2018 (5) KHC 352, Balachandran v. State of Kerala

2020 (3) KHC 697, 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 02.12.2008 in

SC.No.159/2005 0f the Additional District and Sessions Court (Ad hoc)

I, Kollam 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