B.Gangadharan vs State Of Kerala
2021 Latest Caselaw 9501 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                      CRL.A.No.2265 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 637/2004 DATED 16-10-2007 OF
        ADDITIONAL SESSIONS COURT (ADHOC-II) KASARAGODE

   AGAINST THE ORDER/JUDGMENT IN CP 96/2004 DATED 02-07-2004 OF
          JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD



APPELLANT/ACCUSED:

             B.GANGADHARAN,
             S/O. RAGHAVENDRA RAO,
             32/03, BATAKKIKKANDAM,
             BEDADUKA VILLAGE.

             BY ADV. SRI.T.B.SHAJIMON


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY THE EXCISE INSPECTOR,
             BADIADKA EXCISE RANGE,
             WHO IS REPRESENTED BEFORE THIS
             HON'BLE COURT BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2265 OF 2007

                                           2



                                    JUDGMENT

Dated this the 22nd day of March 2021

The accused in S.C.No.637/2004 on the file of the

Additional Sessions Court (Adhoc) II, Kasaragod has

filed this appeal being aggrieved by the judgment dated

16.10.2007, whereby he has been found guilty of offence

under Section 55(a) of the Abkari Act and sentenced to

undergo simple 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 simple imprisonment for a

further period of 6 months.

2. The case of the prosecution is that on

11.04.2004 at 6.00 p.m., the accused was found

possessing and transporting 60 packets of Karnataka

made illicit arrack, each having a capacity of 100 ml.

The sample was collected at the scene of occurrence and

the properties were forwarded to the court on the same

day. Before the court below, PW1 to PW5 were examined

on the side of the prosecution and Exts.P1 to P7 were CRL.A.No.2265 OF 2007

marked. On the basis of the evidence on record, the

court below found the appellant guilty of offence

charged against him and imposed on him the sentence

referred above.

3. Even though several contentions have been

raised in the memorandum of appeal, on going through

the records, I find that there are serious

discrepancies in the prosecution case. Ext.P4 property

list would show that the material objects relating to

the crime had been received on 12.04.2004, the next day

of the alleged offence. It is seen that the properties

were returned to the Excise Inspector, Badiadka for

safe custody. However, it is not clear from the

endorsement as to on which day, the properties were

returned. Ext.P5 which has been produced as the

forwarding note appears to have been prepared on

11.04.2004 itself. However, there is no endorsement

regarding the date of receipt of the forwarding note in

the Court of the Magistrate. A counter signature of

the Magistrate is available but there is no date CRL.A.No.2265 OF 2007

written below to indicate the date on which the

Magistrate had counter signed. There is nothing in the

document to indicate the date on which the sample was

forwarded to the Chemical Examiner. At the same time,

Ext.P6, which is the report of the Chemical Examiner,

would show that the sample was received by the Examiner

along with the reference letter dated 18.04.2003 from

the Judicial First Class Magistrate, Kasaragod through

the Excise Guard, K.P.Hashim. However, it is stated

that the said samples were received only on 16.05.2004,

one month after the reference letter. There is no

evidence forthcoming regarding the safe custody of the

contraband articles and the sample which is said to

have been collected at the spot of occurrence, between

12.04.2004 and 16.05.2004. In the absence of any

evidence regarding the safe custody during this period

and in the absence of any indication in the forwarding

note regarding the despatch of the sample to the

Chemical Examiner, the only conclusion possible is that

the prosecution has failed to prove beyond any CRL.A.No.2265 OF 2007

reasonable doubt that the very same sample which was

collected at the scene of occurrence had reached the

Chemical Examiner in tamper proof condition. [see

Kumaran v. State of Kerala (2016 (4) KLT 718)]. In the

above circumstances, the appellant is entitled to

succeed in this appeal.

In the result, the judgment dated 16.10.2007 in

S.C.No.637/2004 on the file of the Additional Sessions

Court (Adhoc-II), Kasargod 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