Kerala High Court
Sahadevan vs State Of Kerala on 12 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
CRL.A.No.940 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 608/2000 DATED 04-04-2006 OF
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-IV,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT IN CP 35/2000 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II, ATTINGAL
APPELLANT/ACCUSED:
SAHADEVAN
S/O.RAGHAVAN,
KALLIKKODU VEEDU,
MAHADEVAPURAM,
ALINERA MURI,
AYIROORPARA.
BY ADVS.
SRI.G.SASIDHARAN CHEMPAZHANTHIYIL
SRI.S.VISHNU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SYLAJA.S.L
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.940 OF 2006
2
JUDGMENT
Dated this the 12th day of March 2021
The accused in S.C.No.608/2000 on the file of the
Additional Sessions Court, Fast Track (Adhoc) IV,
Thiruvananthapuram has filed this appeal being
aggrieved by judgment dated 04.04.2006, whereby he has
been found guilty of offence under Section 8(1) & (2)
of the Abkari Act and has been sentenced to undergo
rigorous imprisonment for a period of one year and to
pay a fine of ₹1,00,000/- and in default of payment of
fine, to undergo rigorous imprisonment for a further
period of 3 months.
2. The case of the prosecution is that on
20.05.1998, the Preventive Officer, Excise Range
office, Kazhakkuttom and party, who were on patrol
duty, had found the accused walking along the road
holding a plastic can in suspicious circumstances and
on detaining the accused and verifying the contents of
CRL.A.No.940 OF 2006
the can, it was found that it was a 2½ litre can which
contained 1 litre of contraband arrack. The accused
was arrested, the contraband arrack was seized and the
accused along with the thondi articles were produced
before the Excise Range office, Kazhakkuttom and the
crime was registered. Subsequently, the accused along
with the contraband arrack and records were produced
before the Judicial First Class Magistrate's Court II,
Attingal. After completion of investigation, the
Excise Inspector, Excise Range Office, Kazhakkuttom
laid the charge before the JFCM II, Attingal, who
committed the case to the Court of Sessions as per
order dated 08.05.2000.
3. Before the court below, the prosecution
examined PWs 1 to 5, Exts.P1 to P9 were marked and MO1
was identified. On the basis of the evidence on
record, the Sessions Court found that the appellant was
guilty of the offence charged and imposed the sentence
referred above.
CRL.A.No.940 OF 2006
4. Heard.
5. Even though several contentions are taken in
the memorandum of appeal, there is a flaw in the case
of the prosecution. Ext.P8 purports to be the
requisition for chemical analysis, which has been
preferred by the Excise Inspector, Kazhakkuttom. On
verification of the records, I find that Ext.P8 has
been produced before the court on 20.05.1998.
Admittedly, no sample was taken at the time of
detection of the crime and the entire can containing
the contraband arrack had been produced before the
court. The Excise Inspector has signed the requisition
on 20.05.1998. However, no date is seen on the
requisition letter, indicating the date on which the
article was forwarded to the chemical examiner. There
is a forwarding letter attached to the requisition
form, which is address from the Magistrate to the
Chemical Examiner. Even though a date 27.05.1998 has
been written on that, the same has been cancelled and
CRL.A.No.940 OF 2006
the date 12.06.1998 has been written. This letter also
does not contain a date after the initial of the
Magistrate. However, the letter indicates that the
article was despatched on 12.06.1998. At the same
time, Ext.P5, which was the chemical analysis report,
shows that the articles had reached the Chemical
Examiner on 12.06.1998 along with a letter dated
27.05.1998. Apart from the above discrepancies
regarding the dates and the failure to write the date
below the initial of the Magistrate, there is yet
another glaring factor. The forwarding note does not
contain the impression of the specimen seal which has
been used for sealing the sample/material object.
Moreover it is seen from Ext.P5 report that what has
been received by the Chemical Examiner is only a bottle
containing 180 ml of a clear and colourless liquid.
There is absolutely no evidence to link the accused
with the material which has been examined by the
Chemical Examiner. This is for the reason that there
CRL.A.No.940 OF 2006
is no evidence to show at what point of time 180 ml of
the contraband arrack was taken as sample in a bottle.
There is nothing to show who took the sample. There is
nothing to show how the bottle was sealed and which was
the seal used. The forwarding note does not contain
the impression of the specimen seal. Since the entire
thondi articles were produced before the court, the
prosecution was duty bound to examine the thondi clerk
to prove the aspect of taking sample from the articles
which were produced before the court or at least
produced some proceedings by which such sample was
taken. No such evidence is forthcoming regarding the
above. It is well settled that the absence of the
impression of the specimen seal used for sealing the
sample is fatal to the case of the prosecution. (See
Ravi V. State of Kerala [2018 (5) KHC 352] &
Balachandran V. State of Kerala [2020 (3) KHC 697]).
In the above circumstance, the appellant is
entitled to succeed in this appeal. The judgment dated
CRL.A.No.940 OF 2006
04.04.2006 of the Additional Sessions Judge, Fast Track
Court (Adhoc) IV, Thiruvananthapuram in S.C.No.608/2000
is set aside. The appellant is acquitted and set at
liberty. The bail bonds, if any, executed by the
appellant or on his behalf are cancelled. The appeal
stands allowed.
Sd/-
T.R.RAVI, JUDGE
Pn
