Viswanadhan vs State Of Kerala
2021 Latest Caselaw 7415 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                          CRL.A.No.984 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC.NO.132/2002 DATED 20-03-2006 OF
         ADDITIONAL SESSIONS JUDGE (ADHOC)- II, KALPETTA


APPELLANT/ACCUSED:

             VISWANADHAN
             S/O.GOPALAN CHETTY,
             APPAPARA,
             THIRUNELLI,
             WAYANAD DISTRICT.

             BY ADV. SRI.M.P.ASHOK KUMAR

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP.BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.

             BY SMT.SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.984 OF 2006

                                   2



                             JUDGMENT

Dated this the 3rd day of March 2021

The accused in S.C.No.132/2002 before the Additional Sessions

Judge (Adhoc) II, Kalpetta has filed this appeal being aggrieved by the

judgment dated 20.03.2006, whereby the accused has been found

guilty of offence under Section 55 (a) of the Abkari Act and has been

sentenced to undergo simple imprisonment for one year and a fine of

Rs.1 lakh and in default of payment of fine to undergo simple

imprisonment for three months.

2. The case of the prosecution is that on 15.03.2000 at about

21.30 hours the accused was found in possession of 25 packets of

Karnataka made arrack on the side of the road near Anappara

Hospital, Thrunelly amsom. The detection was made by the Sub

Inspector of Police, Mananthavady. Before the court below, the

prosecution examined PW1 to PW5 and Exts.P1 to P7 were marked

along with MO1 to MO3. The court below after considering the

evidence on record, found that the prosecution case has been proved

and that the accused is guilty of the offence charged.

3. Heard Shri.M.P.Ashok Kumar on behalf of the appellant and

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

4. In this appeal, the appellant contends that the court below CRL.A.No.984 OF 2006

ought to have found the appellant not guilty of the offences for the

reason that there is considerable delay in the production of the

'thondy' articles before the Court, which is fatal to the prosecution.

According to the counsel for the appellant, the seizure was on

15.03.2000 and the articles were produced only on 17.05.2000. It is

stated in the memorandum of appeal that the above date has been

wrongly stated in the judgment as 20.03.2000. It is contended that

this Court has held even three days delay as crucial and hence, even if

it is to be taken that 20.03.2000 is the date on which the articles were

produced before the Court, it can be treated as considerable delay.

The appellant is probably relying on the date on which the court below

had sent the articles for chemical examination along with the

forwarding note, which is seen from the records as 17.05.2000.

5. On verification of the records, I find that there is another

crucial factor which affects the prosecution case and necessitates the

acquittal of the appellant. In the forwarding note which has been

marked as Ext.P6 there is no specimen seal on the sample affixed.

Failure to affix the seal on the forwarding note is fatal for the

prosecution. The requirement of affixing of the specimen seal

impression and the legal consequence of such failure has been

considered by this Court in several judgments and is no longer res CRL.A.No.984 OF 2006

integra [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, and 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.

6. 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 20.03.2006 in

SC.No.132/2002 of the Additional Sessions Judge (Adhoc) II, Kalpetta

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