Aravindakshan vs State Of Kerala
2021 Latest Caselaw 9883 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.2211 OF 2007

    AGAINST THE JUDGMENT IN SC.NO.801/2005 DATED 29-10-2007 OF
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT NO.II ADHOC), THRISSUR

  CP.NO.45/2005 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT - III,
                             THRISSUR


APPELLANT/ACCUSED:

             ARAVINDAKSHAN,
             S/O. GOVINDAN,
             MUNDOPATTIL HOUSE,
             PANANCHERY VILLAGE,
             AYODU DESOM, THRISSUR DISTRICT.

             BY ADV. SRI.A.C.DEVY

RESPONDENT/STATE:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM, KOCHI-31.

             BY SMT 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.2211 OF 2007

                                     2



                              JUDGMENT

Dated this the 24th day of March 2021

The accused in SC.No.801/2005 on the file of the Court of

Additional Sessions Judge (Fast Track Court No.II -Adhoc), Thrissur

has filed this appeal being aggrieved by the judgment dated

29.10.2007 whereby the appellant was found guilty of offence under

section 8(2) of the Abkari Act and has been sentenced to undergo

simple imprisonment for one year and to pay a fine of Rs.1 lakh and in

default of payment of fine, to undergo simple imprisonment for a

further period of three months.

2. The case of the prosecution is that when PW1 and PW2 along

with others, while on patrol duty they found the accused in possession

of a can containing 2 litres of illicit arrack. The incident is said to have

happened on 16.05.2003 at 5.40 pm. According to the prosecution,

300 ml of the liquid was taken as sample at the site of occurrence and

the property was sealed using the personal seal of PW1. Before the

court below, PW1 to PW5 were examined and Exts.P1 to P12 were

marked. MO1 was identified. On the basis of the evidence on record,

the Court below found the appellant guilty of the offence and imposed

the sentence referred above.

3. Even though several grounds have been raised in the appeal CRL.A.No.2211 OF 2007

memorandum, on perusal of the records, I find that there are serious

infirmities in the prosecution case. The incident is said to have

happened on 16.05.2003. The property list which is produced as

Ext.P9 would show that the 'thondy' articles were produced before the

Court only on 17.05.2003. It is also seen that on the same day the

'thondy' articles except the sample had been returned to the Excise

Inspector, Thrissur Range for safe custody. Ext.P11 is produced as

forwarding note and there is a covering letter dated 24.05.2003 from

the Excise Inspector to indicate that the said note was submitted on

that day. A perusal of Ext.P11 would show that the space where the

name of the Excise Guard with whom the sample was to be sent for

chemical examination is written, has been left blank. So also, the

space for affixing the impression of the specimen seal which was used

for sealing the sample is also left blank. There is no indication as to

when exactly the Magistrate has counter signed the document. There

is a covering letter from the Magistrate addressed to the Joint

Chemical Examiner which is seen dated on 25.06.2003, one month

after the date of the forwarding note. The said document also does not

bear the impression of the specimen seal used for sealing the sample.

As already stated, it is the specific case of the prosecution that the

sample was sealed using the personal seal of PW1. This Court in a CRL.A.No.2211 OF 2007

catena of decisions has held that the failure to affix the impression of

the specimen seal used for sealing the sample is fatal for the

prosecution. (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 held that the absence of required details on the forwarding

note, like the date on which the Magistrate counter signed the

document, the name of the Excise Guard with whom the sample is to

be entrusted for forwarding to the Chemical Examiner etc., are fatal

for the prosecution. (See Kumaran v. State of Kerala [2016 (4)

KLT 718].

4. In the said circumstances, the judgment dated 29.10.2007 in

SC.No.801/2005 on the file of the Court of Additional Sessions Judge

(Fast Track Court No. II -Adhoc), Thrissur 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 stands allowed.

Sd/-

T.R.RAVI

JUDGE Sn