Surendran vs State Of Kerala
2021 Latest Caselaw 8644 Ker

             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.930 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 924/2003 DATED 05-04-2006 OF
      ADDITIONAL SESSIONS COURT, FAST TRACK II, ALAPPUZHA



APPELLANT/ACCUSED:

             SURENDRAN
             S/O KUNJUPILLAI,
             THAZHATHEDATH MURI,
             KADUVINAL,
             VALLIKUNNAM VILLAGE.

             BY ADVS.
             SRI.T.S.HARIKUMAR
             SRI.BASANT BALAJI
             SRI.R.GOPAN


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.930 OF 2006

                                          2



                                  JUDGMENT

Dated this the 16th day of March 2021

The accused in S.C.No.924/2003 on the file of the

Additional Sessions Judge, Fast Track II, Alappuzha has

filed this appeal challenging the judgment dated

05.04.2006, whereby he has been found guilty of

offences under Sections 8(1), 8(2) & 55(a) of the

Abkari Act and sentenced to undergo rigorous

imprisonment for one year and to pay a fine of

Rs.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

29.07.2002 at 5.30 p.m., the appellant was found

transporting arrack in MO1 bottle having the capacity

of 750 ml. The officer who detected the offence (PW1)

has stated in evidence that after collecting the sample

from the articles seized from the appellant, the bottle

containing the balance arrack and the bottle containing CRL.A.No.930 OF 2006

the sample along with the other records and mahazar

were produced by him before the Excise Range Office,

Mavelikkara. It is stated that he reached the office

at 8.00 p.m. on 29.07.2003 and that he had handed over

the records and the thondi articles on the next day on

8.00 a.m. to the Excise Inspector. Nothing is stated

in evidence regarding the safe custody of the thondi

articles till it was entrusted with the Excise

Inspector. The Excise Inspector has stated in evidence

that he had received the thondi articles on 30.07.2003

and the same had been produced before the court on the

same day along with the property list. Ext.P6 which is

the property list does not bear any date. On the side

of the prosecution, PW1 to PW5 were examined, Exts.P1

to P7 were marked. On the side of the defence, DW1 was

examined. MO1 was produced and identified. On the

basis of the evidence on record, the court below found

the appellant guilty of the offences charged against

him and imposed the sentence referred above.

3. Heard Sri.R.Gopan, learned counsel on behalf of CRL.A.No.930 OF 2006

the appellant and Smt.Sylaja, learned Public Prosecutor

on behalf of the State.

4. The counsel for the appellant contends that the

prosecution has failed to prove beyond any reasonable

doubt that the offence has been committed by the

appellant. He submits that there is considerable delay

in sending the sample for chemical examination and

there is no evidence regarding the safe custody of the

thondi articles before it was entrusted to the Excise

Inspector. It is further stated that PW3 in his

evidence has specifically stated that he does not know

who had produced the thondi articles. He also points

out that the requisition for sending the sample for

chemical examination does not show the name of the

person with whom it should be sent and does not in any

manner indicate the day on which the sample was handed

over for forwarding to the chemical examiner.

5. I find considerable force in the contentions

raised by the counsel for the appellant. Ext.P7, which

is the requisition submitted by the Excise Inspector of CRL.A.No.930 OF 2006

Mavelikkara Range, addressed to the chemical examiner

does not show the name of the Excise Guard and the said

column is left blank. The document does not bear the

counter signature of the Magistrate nor any date

indicating the date on which the sample was forwarded.

Along with the requisition form, a letter from the

Judicial First Class Magistrate, Kayamkulam for

chemical examination has also been produced. The said

document is apparently a carbon copy of the original

using black carbon paper and it is seen that the

document did not originally have entries against the

column for date and the column for entering the name of

the person with whom the sample was sent nor did it

originally have any entry against the reference number.

It is seen that all these columns have subsequently

been filled up with blue ink and an entry stating

despatched along with the date 27.08.2003 is also seen.

The document purports to forward the material objects

relating to three crimes, which were before the court,

one among them being the crime in question. This CRL.A.No.930 OF 2006

document also shows an initial in green colour in the

place for signature of the Judicial First Class

Magistrate and no date is written below to indicate the

day on which the Magistrate had signed the document, if

at all it is to be assumed that his signature has been

put. In the light of the above discrepancies, I am of

the opinion that Ext.P7, which does not contain any of

the relevant details that are required in a Forwarding

Note, cannot be treated as a Forwarding Note at all.

Even if Ext.P7 document is to be treated as a genuine

document, it would only show that the sample has been

despatched almost one month after the submission of the

request for sending the sample for chemical

examination. It has been held by this Court that the

forwarding note is the main link which links the

accused, contraband articles seized, the sample taken

at the time of occurrence, the sample produced in court

and the sample which has been examined by the chemical

examiner. The defects which have been noted in the

forwarding note are fatal for the prosecution and would CRL.A.No.930 OF 2006

lead to the conclusion that the prosecution has failed

to prove beyond any reasonable doubt that the sample

which was stated to have been collected from the

person/accused at the time of occurrence was the sample

which was examined by the Chemical Examiner. [See

Kumaran v. State of Kerala (2016 (4) KLT 718),

Unnikrishnan Nair V. State of Kerala (2020 (3) KHC 455)

& Sebastian @ Para V. State of Kerala (2020 KHC 478)]

In the result, the judgment of the Additional

Sessions Court, Fast Track II, Alappuzha in

S.C.No.924/2003 dated 05.04.2006 is set aside. The

appellant is acquitted and set at liberty. Bail bonds

if any executed by the appellant or on his behalf are

cancelled. The appeal is allowed.

Sd/-

T.R.RAVI, JUDGE

Pn