Kerala High Court
Thulasi vs State Of Kerala on 16 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942
CRL.A.No.752 OF 2008
AGAINST THE ORDER/JUDGMENT IN SC 1050/2005 DATED 28-02-2008 OF
ADDITIONAL SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
1 THULASI
S/O.SUKUMARAN, VAYALTHITTA VEEDU,
KUZHIYAM, PERUMKUZHY DESOM,
AZHOOR VILLAGE.
2 MANCHU SAJI
S/O. APPU, VAYALTHITTA VEEDU,
KUZHIYAM, PERUMKUZHY DESOM,
AZHOOR VILLAGE.
BY ADV. SRI.M.DINESH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.752 OF 2008
2
JUDGMENT
Dated this the 16th day of March 2021
The accused in S.C.No.1050/2005 on the file of
the Additional Sessions Court, Fast Track III,
Thiruvananthapuram have filed this appeal
challenging the judgment dated 28.02.2008, whereby
they have been found guilty of offence under
Section 8(2) of the Abkari Act and sentenced to
undergo simple imprisonment for one year each and
to pay a fine of ₹1,00,000/- each and in default of
payment of fine to undergo imprisonment for a
further period of 3 months each.
2. The case of the prosecution is that on
01.12.2004 at about 5.00 p.m., while PW4 and party
were on patrol duty, they received reliable
information that the accused were selling arrack at
Kuzhiyam. On the basis of the information, they
proceeded to the spot and found that the accused
CRL.A.No.752 OF 2008
were holding black jerry cans. Accused were
apprehended and it was found that the jerry cans
were filled with arrack. The contraband articles
were seized, the accused were arrested, a mahazar
was prepared and on reaching the Police Station,
PW4 registered a crime against the accused.
Before the court below, PW1 to PW5 were examined
and Exts.P1 to P9 were marked. MO1 series were
identified and marked. On the basis of the
evidence on record, the court below found the
accused guilty of offences charged against them and
imposed on them the sentence referred above.
3. Heard Sri.Dinesh M., learned counsel for
the appellants and Smt.Sylaja, learned Public
Prosecutor on behalf of the State.
4. The counsel for the appellants pointed out
several discrepancies in the case put forward by
the prosecution. Firstly, it is contended that the
very same officer who detected the offence had
arrested the accused, registered the crime,
CRL.A.No.752 OF 2008
conducted the investigation and laid the charge,
which the counsel submits is not the correct
procedure that has to be followed. It is pointed
out that under Section 38 of the Abkari Act, on
detection of every breach of the provisions of
Abkari Act, an Abkari officer has to give
information of the offence to his immediate
superior officer or to an Abkari Inspector which is
a mandatory provision and that since this procedure
has not been followed, the prosecution has to fail.
The counsel relies on the decision of this Court in
Suresh Babu V. State of Kerala [2017 (4) KHC 693].
Secondly, the counsel submits that it is seen from
the property list, which is produced as Ext.P7,
that the thondi articles were produced before the
court on 02.12.2004, the next day after the alleged
offence. He points out that after production of
the thondi articles, the same were returned with
direction to keep it at the Police Station until
further orders. The endorsement in Ext.P7 shows
CRL.A.No.752 OF 2008
that the above contention is justified. It can
thus be seen that no sample was collected at the
scene of occurrence nor was it collected at the
time of production of the articles on 02.12.2004
before the Magistrate. Counsel submits that going
by Ext.P8 forwarding note, the sample was sent for
chemical examination only on 24.12.2004 and
apparently the thondi articles were in the Police
Station during the interregnum. There is no
evidence tendered regarding the safe custody of the
thondi articles in the Police station by any of the
witnesses which is fatal for the prosecution case
(See Anilkumar v. State of Kerala and anr. (2020
(4) KHC 172). At the same time, the thondi clerk
has been examined as PW5. She has stated in the
chief examination that she had, on direction by the
Magistrate, verified the thondi articles and
entered the details in thondi mahazar. She has
further stated that 180 ml was taken as sample in 2
bottles from the cans produced and the same were
CRL.A.No.752 OF 2008
sent for chemical examination. The date on which
the sample was taken and the procedure that is
followed for taking the sample is not mentioned.
Admittedly, on 02.12.2004 itself the articles had
been returned for keeping in the Police Station.
There is no evidence regarding the day on which the
articles were brought back to the court for
enabling the Thondi Clerk to collect the sample.
It is also not stated whether the sample was
collected on 02.12.2004 itself and only the balance
have been returned for custody in the Police
Station. Without any such details, it is not
possible to conclude that the prosecution has
proved beyond any reasonable doubt that sampling
was done in accordance with law. It is also
relevant that there is absolutely no evidence
regarding the safe custody in the Police Station.
Another aspect that is pointed out is that Ext.P8,
which purports to be the forwarding note, does not
bear any date or any signature with date by the
CRL.A.No.752 OF 2008
Magistrate. It is also pointed out that the seal
that has been affixed on the document is a wax seal
without any inscription. A covering letter which
has been attached to the forwarding note shows the
date of despatch as 24.12.2004. But there is no
date written below the initial of the Judicial
First Class Magistrate. Counsel for the appellant
submits that the forwarding note does not give any
indication as to the date on which the sample was
handed over to the Police Officer for sending to
the Chemical Examiner.
5. I find considerable force in the
contentions raised by the counsel for the
appellant. It has been held by this Court that
under Section 38 of the Abkari Act, the detecting
officer has to give information about the crime to
the superior officer, which admittedly has not been
done in this case. So also, there is nothing in
evidence to show that the sample was collected from
the thondi articles by the Thondi Clerk on the
CRL.A.No.752 OF 2008
basis of specific instruction and the manner in
which such sample was collected by the thondi clerk
and the date and time on which such sample if any
collected was entrusted with the Police Officer for
forwarding to the Chemical Examiner. So also,
there is nothing to prove the safe custody of the
thondi articles in the Police Station since nobody
has been examined as witnesses on such aspects. It
has been held by this Court in Majeedkutty V. The
Excise Inspector, Kollam Range (2015 (1) KLT 624)
that absence of tendering evidence regarding the
aspects referred above is fatal for the
prosecution. It is also well settled that if the
sample is sent for chemical examination after
affixing a seal, the sample seal has to be
forwarded for comparison to the Chemical Examiner.
It is also to be noted that the forwarding note
does not bear a seal with a description and only
wax has been affixed on the forwarding note. Such
a seal will not be sufficient for any verification
CRL.A.No.752 OF 2008
and it can create all possibilities for tampering
with the articles.
6. In the light of the settled legal position
and in the facts of this case, the appellants are
entitled to succeed in this appeal.
In the result, the judgment of the Additional
Sessions Court, Fast Track III, Thiruvananthapuram
in S.C.No.1050/2005 dated 28.02.2008 is set aside.
The appellants are acquitted and set at liberty.
Bail bonds, if any, executed by the appellants or
on their behalf are cancelled. The appeal is
allowed.
Sd/-
T.R.RAVI, JUDGE
Pn
