Kerala High Court
Sasi vs State Of Kerala on 15 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942
CRL.A.No.745 OF 2008
AGAINST THE ORDER/JUDGMENT IN SC 1382/2005 OF ADDITIONAL DISTRICT
AND SESSIONS COURT (ADHOC)-II, KOLLAM DATED 6.3.2008
APPELLANT/ACCUSED:
SASI
S/O.MADHAVAN, SASI BHAVANAM,
ADINADU THEKKUM MURI,
ADINADU VILLAGE, KARUNAGAPPALLY.
BY ADV. SRI.T.GOPALAKRISHNAN
RESPONDENT/RESPONDENT:
STATE OF KERALA
REP. BY THE INSPECTOR OF EXCISE RANGE, KARUNAGAPPALLY
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
(CRIME NO.45/03 OF KARUNAGAPPALLY EXCISE RANGE)
BY PUBLIC PROSECUTOR SMT SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.745 OF 2008
2
JUDGMENT
Dated this the 15th day of March 2021
The accused in S.C.No.1382/2005 on the file of the
Additional District and Sessions Court (Adhoc II),
Kollam has filed this appeal being aggrieved by the
judgment dated 06.03.2008, whereby he has been found
guilty of offence under Section 8(2) of the Abkari Act
and sentenced to undergo rigorous imprisonment for a
period of 3 years and to pay a fine of ₹3,00,000/- and
in default of payment of fine to undergo simple
imprisonment for a further period of one year.
2. The case of the prosecution is that on
11.04.2003 the Excise Inspector, who was on patrol
duty, got information that spirit is stored in the
house of the accused and during the search of the house
in the presence of the accused at about 4.30 p.m., it
was found that a white can of 5 litre capacity which
was filled with spirit was kept in the kitchen of the
house. The contraband article was seized and it is
stated that 200 ml of the liquor was collected as
CRL.A.No.745 OF 2008
sample and the sample and the residue were sealed and
labelled and duly attested by the witnesses. The
accused was arrested. It is stated that the properties
were produced before the court on the next day, i.e.,
12.04.2003 as per the property list Ext.P7 with a
request for chemical analysis. Before the trial court,
PWs 1 to 3 were examined and Exts.P1 to P10 were
marked. None of the independent witnesses were
examined. It is seen from the records of the case and
the judgment that the forwarding note has not been
produced and marked. On the basis of the evidence on
record, the court below found the appellant guilty of
offence and imposed the sentence referred above.
3. Heard.
4. Even though several contentions have been
raised in the appeal memorandum, there is a serious
flaw in the prosecution case, since the forwarding note
has not been produced and marked as evidence in the
case. This court has held in several decisions that
the absence to produce and mark the forwarding note is
CRL.A.No.745 OF 2008
fatal to the prosecution case and it will not be
possible to hold that the prosecution has proved beyond
any reasonable doubt that the very same sample which
was taken on the spot of occurrence had reached the
chemical examiner for analysis in a tamper proof
condition. [See Unnikrishnan Nair V. State of Kerala
(2020 (3) KHC 455) & Sebastian @ Para V. State of
Kerala (2020 KHC 478). It is seen from the report of
the Chemical Examiner that the sample had reached the
examiner only on 29.04.2003, which was 18 days after
the seizure of the articles. The absence to produce
and mark the forwarding note in such circumstances is
crucial and the link between taking of the sample for
production before the court and forwarding the same for
chemical examination has not been satisfactorily
proved.
In the above circumstances, the judgment dated
06.03.2008 in S.C.No.1382/2005 of the Additional
District and Sessions Court (Adhoc II), Kollam is set
aside. The appellant is acquitted and set at liberty.
CRL.A.No.745 OF 2008
The bail bonds, if any, executed by the appellant or on
his behalf are cancelled. The appeal is allowed.
Sd/-
T.R.RAVI, JUDGE
Pn
