Biju vs State Of Kerala
2021 Latest Caselaw 7082 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.1489 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 582/2003 DATED 18-07-2006 OF
ADDITIONAL DISTRICT & SESSIONS (AD-HOC) COURT - I, PATHANAMTHITTA

  AGAINST THE ORDER/JUDGMENT IN CP NO.40/2003 OF JUDICIAL FIRST
           CLASS MAGISTRATE'S COURT -II,PATHANAMTHITTA


APPELLANT/ACCUSED:

             BIJU,
             S/O. BHASKARAN NAIR,
             PLAVARA VEEDU,
             THAZHAM MURI,
             MALAYALAPUZHA VILLAGE,
             PATHANAMTHITTA DISTRICT.

             BY ADV. SRI.V.PHILIP MATHEW

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. 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.1489 OF 2006

                                  2




                            JUDGMENT

Dated this the 1st day of March 2021

The accused in SC.No.582/2003 on the files of the Additional

District and Sessions (Adhoc) Court - I, Pathanamthitta has filed this

appeal, aggrieved by the order of the Court below finding him guilty of

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

sentencing him to undergo rigorous imprisonment for one year and to

pay a fine of Rs.1 Lakh and in default of payment of fine, to undergo

rigorous imprisonment for one more year.

2. The case of the prosecution is that on 24.05.2001 at about

5.00 p.m, the appellant was found to be in possession of 20 litres of

arrack kept in plastic containers and being transported in an

autorikshaw bearing No.KL/3D-153 driven by the first accused. The

appellant was stated to be seated in the passenger cabin. The Excise

Officials on suspicion arrested the accused and the contraband was

taken into custody. The case was registerd as Crime No.7/2001 by the

Excise Inspector, Konni Excise Range alleging offences punishable

under Section 8(1), 55 (a) and 67 (B)(i) of Abkari Act have been

committed. After investigation, the charge sheet was filed before the

Judicial First Class Magistrate Court, Pattanamthitta and the case was CRL.A.No.1489 OF 2006

numbered as C.P.No.40/2003. The Magistrate committed the case to

the Session Court. The Principal Sessions Court took cognizance of the

offence and the case was numbered as SC.No.582/2003 and later

made over to the Additional Sessions Court.

3. The case against the 1st accused abated on account of his

death on 25.08.2004. The Sessions Court convicted the accused and

imposed the sentence referred above. Aggrieved by the judgment and

sentence imposed on him, the appellant is before this Court.

4. Even though several contentions have been taken in the

memorandum of appeal, on going through the records of the case and

the impugned judgment, I find that there is a serious flaw in the

prosecution case. The primary document which links the contraband

articles and the sample that has been analyzed by the chemical

analyst, which is the forwarding note, has not been marked in

evidence on the side of the prosecution. The necessity of marking and

proving the forwarding note containing the specimen seal on the

sample affixed to it has been emphasized in several judgments of this

Court and it has been held that the failure to prove the forwarding

note is sufficient to acquit the accused. [See the decisions in

Unnikrishnan Nair v. State of Kerala reported in (2020 (3) KHC

455) and Sebastian @ Para v. State of Kerala reported in (2020 CRL.A.No.1489 OF 2006

KHC 478)].

5. In the light of the law laid down by this Court, I find that on

the facts of this case, the appellant is entitled to be acquitted of the

offence. The judgment dated 18.07.2006 in SC.No.582/2003 of the

Additional District and Sessions (Adhoc) IV, Pathanamthitta 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