Sekharan vs State Of Kerala
2021 Latest Caselaw 9882 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                      CRL.A.No.2834 OF 2008

  AGAINST THE JUDGMENT IN SC.NO.485/2006 DATED 01.11.2008 OF THE
     COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA


APPELLANT/ACCUSED:

             SEKHARAN
             AGED 49 YEARS
             S/O PITHINAYI,
             KUPPADITHARA,
             VYTHIRI.

             BY ADV. SRI.K.A.SALIL NARAYANAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP.BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SMT.S.L. SYLAJA, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2834 OF 2008

                                  2

                          JUDGMENT

Dated this the 24th day of March 2021

The accused in SC.No.485/2006 on the file of the Court of

Additional Sessions Judge (Adhoc) II, Kalpetta has filed this appeal

being aggrieved by the judgment dated 01.11.2008 whereby the

appellant was found guilty of offence under section 8(2) of the Abkari

Act and has been sentenced to undergo rigorous imprisonment for six

months and to pay a fine of Rs.1 lakh and in default of payment of

fine, to undergo rigorous imprisonment for a further period of three

months.

2. The case of the prosecution is that, the Sub Inspector of

Police, Padinharathara Police Station had proceeded to the house of

the accused on the basis of the information received that the accused

was engaged in sale of arrack and on reaching the premise, it was

found that the accused was engaged in sale of arrack and also in

possession of apparatus for distilling arrack. On the side of the

prosecution, PW1 to PW6 were examined and Exts.P1 to P8 marked.

MO1 to MO7 were identified and marked. Even though the charge

was laid against the accused under Sections 55(a), (g) and (i) of the

Abkari Act, the Court below found that the prosecution has succeeded

only to the extent of proving that the accused was in possession of

contraband arrack and hence he was found guilty of offence under CRL.A.No.2834 OF 2008

Section 8(2) of the Abkari Act.

3. Even though, several grounds have been urged in the appeal,

on going through the records, I find that there are serious infirmities

in the case put forward by the prosecution. The contraband articles

were produced before the Court along with Ext.P4 property list. On a

perusal of Ext.P4, it can be seen that even though the contraband

articles were seized on 27.08.2005, the same were produced before

the Court only on 29.08.2005 and no evidence is led by the

prosecution to explain the delay of two days in producing the

contraband before the Court. This Court has held that in the absence

of proper explanation by the prosecution for the delay in producing

the contraband articles before the Court, even one day's delay is fatal.

(See. Ravi v. State of Kerala [2018 (5) KHC 352]), Apart from the

aspect of delay in production of the contraband before the Court, I

find that Ext.P5 which is produced as the forwarding note does not

contain the impression of the specimen seal used for sealing the

sample. The said document also does not indicate the name of the

person with whom the sample is to be sent to the Chemical Examiner.

Even though the Magistrate is seen to have counter signed the said

document, which is seen to be prepared on 01.09.2005, there is no

date along with the initial of the Magistrate to indicate the date on

which the counter signature was put. This Court has held in a series CRL.A.No.2834 OF 2008

of decisions that the failure to affix the impression of the specimen

seal used for sealing the sample on the forwarding note is fatal for the

prosecution case. (See Ravi v. State of Kerala [2018 (5) KHC

352]; Balachandran v. State of Kerala [2020 (3) KHC 697];

Smithesh v. State of Kerala [2019 (2) KLT 974]. So also, this

Court has also held that failure to write the date on which the

Magistrate has counter signed the forwarding note and write the

name of the personal with whom the sample is to be sent to the

chemical examiner in the forwarding note, are fatal for the

prosecution case. [See Kumaran v. State of Kerala [ 2016 (4) KLT

718].

4. In the result, the judgment dated 01.11.2008 in

SC.No.485/2006 on the file of the Court of Additional Sessions Judge

(Adhoc) II, Kalpetta 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