Kerala High Court
Johny vs State Of Kerala on 17 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
CRL.A.No.945 OF 2006
AGAINST THE JUDGMENT IN SC.NO.94/2005 DATED 10-05-2006 OF THE
COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC - I), ERNAKULAM
APPELLANT/ACCUSED:
JOHNY
AGED 47 YEARS
S/O. DEVASSY,
MEPPILLY HOUSE, PANDUPARA KARA,,
AYYAMPUZHA VILLAGE, ALUVA TALUK.
BY ADV. SRI.K.SUNILKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. SYLAJA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.945 OF 2006
2
JUDGMENT
Dated this the 17th day of March 2021
The accused in SC.No.94/2005 on the file of the Court of
Additional Sessions Judge (Adhoc -I), Ernakulam has filed this appeal
aggrieved by the judgment dated 10.05.2006 whereby the appellant
was found guilty of offences under section 58 of the Abkari Act and has
been sentenced to undergo rigorous imprisonment for six months and
to pay of fine of Rs. 1 lakh and in default of payment of fine, to
undergo simple imprisonment for a further period of six months.
2. The case of the prosecution is that on 04.10.2002, when PW1
the Excise Inspector of Aluva Circle Office and PW2 the Preventive
Officer of the said office were on patrol duty, they found the accused
carrying a plastic can in his left hand. According to the prosecution, the
accused was intercepted and on examining the can, it was found that it
contained 2 litres of arrack. It is stated that they have also found a 10
litre can which contained 9 litres of arrack. Before the Court below, the
prosecution examined PW1 to PW7 and Exts.P1 to P12 were marked.
On the basis of the evidence on record, the Court below found the
accused guilty of offence under Section 58 of the Abkari Act and
imposed the sentence referred above.
3. Heard.
4. The main contention put forward by the counsel for the
CRL.A.No.945 OF 2006
appellant is that, there is considerable delay in producing the
contraband articles before the Court. It is contended that even though
the seizure is said to be on 04.10.2002, the articles were produced
before the Court only on 19.10.2002 as can be seen from Ext.P8
property list. I find considerable force in the contention put forwarded
by the appellant. Two documents have been produced as property list.
Ext.P7 which has been marked as property list merely shows that the
seal of the Court has been affixed on 05.10.2002. There is no other
endorsement regarding the receipt of the 'thondy' articles by the Court
and inclusion of the details in the 'thondy' register. Ext.P8 is also a
'thondy' list with the very same details but it would show that the same
was received by the Magistrate's Court only on 19.10.2002. There is an
endorsement by the Court that the 'thondy' has received and necessary
entries have been made as T395/02. Even though, PW5 when
examined before the Court had stated that the 'thondy' articles were
produced before the Court on 05.10.2002 and the same were returned
to him for safe custody, there is no corresponding entries seen any
where in Ext.P7 to show that the articles had been returned. The
presence of the seal showing a date 5.10.2002 is not sufficient to prove
that the articles as such were produced on that date. It can be of help
only to prove that the list was produced on that date. At the same time,
Ext.P3 specifically says that the articles were received and necessary
CRL.A.No.945 OF 2006
entries have been made in the 'thondy' register. In the above
circumstances, Ext.P8 alone can be treated as the property list and the
proof regarding production of the 'thondy' articles before the Court.
This Court has held in several decisions that delay in producing the
'thondy' articles before the court is fatal for the prosecution. In Ravi V.
State of Kerala [2018 (5) KHC 352], this Court held that in the
absence of proper explanation for the delay, even one day's delay is
fatal. Similar view have been expressed by this Court in Ramankutty
V. Excise Inspector [2013 (3) KHC 308] and Balachandran V.
State of Kerala [2020 (3) KHC 697].
5. Further, it is seen from Ext.P9 forwarding note that it does
not bear any date. The name of the Excise Guard through whom the
materials have to be forwarded for chemical examination is not stated.
Even though, the Judicial First Class Magistrate has signed the
document, no date is written along with the signature to show the date
on which the learned Magistrate had endorsed. The space allotted for
the impression for the specimen seal used for sealing the sample has
been left blank. The seal of the Court bears the date '18.11.2002' to
suggest that the forwarding note was received in the Court only on
18.11.2002 which is even much after Ext.P8 property list was received
by the Court. From Ext.P10 report of the Chemical Examiner, it is seen
that the articles were received by the Examiner only on 27.11.2002.
CRL.A.No.945 OF 2006
This Court in several judgments has stated and reiterated the
importance of a forwarding note and its evidentiary value in proving the
link between the sample alleged to have been collected from the
accused at the time of occurrence of the offence and its production
before the Court and the forwarding of such sample to the chemical
examiner who has to receive it in tamper proof condition. [see Ravi V.
State of Kerala [2018 (5) KHC 352] ; Smithesh v. State of Kerala
[2019 (2) KLT 974] ; Prakasan and another v. State of Kerala
[2016 KHC 96]
In the light of the law laid down by this Court and on the facts of
the case, the judgment dated 10.05.2006 in SC.No.94/2005 on the file
of the Court of Additional Sessions Judge (Adhoc -I), Ernakulam is set
aside. The accused is acquitted and set at liberty. Bail bonds if any
executed by the appellant or on his behalf are cancelled. The appeal
stands allowed.
Sd/-
T.R.RAVI
JUDGE
Sn
