Rajan vs State Of Kerala
2021 Latest Caselaw 8191 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR. JUSTICE T.R.RAVI

  WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

                     CRL.A.No.1727 OF 2006

    AGAINST THE JUDGMENT IN SC 646/2004 DATED 18-07-2006 OF
        ADDITIONAL SESSIONS COURT (ADHOC)-I, THODUPUZHA

  CP 98/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAPPANA


APPELLANT/ACCUSED:

            RAJAN, S/O. THANKARAJ,
            AYYAPPANCOIL VILLAGE, CHAPPATHUKARA,, POOKULAM
            PUTHUVAL.

            BY ADV. SRI.JOICE GEORGE

RESPONDENT/COMPLAINANT:

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

             BY PUBLIC PROSECUTOR SMT. SYLAJA PP



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD              ON
26-02-2021, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:
 CRL.A.No.1727 OF 2006

                                    2



                              JUDGMENT

Dated this the 10th day of March, 2021

The accused in SC.No.646/2004 on the files of the Additional

Sessions Judge (Adhoc)-I, Thodupuzha has filed this appeal,

aggrieved by the judgment dated 18.7.2006, whereby he has been

found guilty of offence punishable under Sections 55 and 8(1) and

(2) of the Abkari Act and sentencing him to undergo rigorous

imprisonment for three months and to pay a fine of Rs.1 Lakh and

in default of payment of fine, to undergo simple imprisonment for a

further period of three months.

2. The case of the prosecution is that on 12.1.2002 at about

7.15 PM, the appellant was found to be in possession of 2½ litres

of contraband arrack in a black can of 5 litre capacity, beneath a cot

in the bedroom of his house. Before the trial court, the prosecution

examined PW's 1 to 7 and marked Exts.P1 to P8 and identified

MO1. On the side of the defense Exts.D1 to D7 were marked. On

the basis of the evidence on record the trial court found the

appellant guilty of the offence charged against him and imposed on

him the sentence referred above.

3. Heard Sri Joice George, learned ounsel for the appellant

and Smt.Sylaja, learned Public Prosecutor on behalf of the State. CRL.A.No.1727 OF 2006

4. The counsel for the appellant contended that the

prosecution has failed to produce and prove the forwarding note

whereby the sample said to have been taken at the time of

detection of the offence was forwarded to the Chemical examiner. It

is also contended that there is delay in forwarding the sample and

producing the property list in the court. I find considerable force in

the contention put forward by the counsel for the appellant. 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 KHC 478)].

5. In the light of the law laid down by this Court, I find that CRL.A.No.1727 OF 2006

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.646/2004 of

the Additional Sessions Judge (Adhoc) I, Thodupuzha is set aside.

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

executed by the appellant or on his behalf is cancelled. The appeal

stands allowed.

Sd/-

T.R.RAVI, JUDGE

dsn