Sivanandan vs State Of Kerala
2021 Latest Caselaw 21767 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                   CRL.REV.PET NO. 1843 OF 2012
AGAINST THE JUDGMENT IN CRA 645/2010 OF ADDITIONAL DISTRICT
     COURT-II     MAVELIKKARA CONFIRMING THE JUDGMENT IN
     SC 234/2008 OF ASSISTANT SESSIONS COURT CHENGANNUR
REVISION PETITIONER/APPELLANT IN CRA 645/10/ACCUSED IN SC
234/08:

            SIVANANDAN, AGED 52 YEARS
            S/O.PAPPU, VARIKKOLIL VEEDU, KOLADATHUSSERI MURI
            THIRUVANDOOR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA
            DISTRICT

            BY ADV SRI.AJITH MURALI



RESPONDENT/RESPONDENT IN CRA 645/10 COMPLAINANT IN SC
234/08:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
            OF KERALA ERNAKULAM

            BY PP SRI. SANAL P. RAJ


     THIS    CRIMINAL   REVISION   PETITION   HAVING   BEEN   FINALLY
HEARD ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P.No.1843/2012

                                  -:2:-



                                 ORDER

Dated this the 2nd day of November, 2021

This criminal revision petition has been directed against the

judgment in Crl.A.No.645/2010 dated 7.6.2012 on the files of the

Additional Sessions Judge-II, Mavelikara (for short "the appellate

court") confirming the judgment in S.C.No.234/2008 dated

10.11.2010 on the files of the Assistant Sessions Judge,

Chengannur (for short "the trial court").

2. The prosecution case in short is that on 17/12/2004 at

1.30 pm, the accused was found in possession of 1½ litres of

arrack in a green plastic bottle for sale in Kandathilpady-

Vettikodu Temple road, Thiruvanvandoor Village in contravention

of the offence punishable under Section 8(1) & (2) of the Abkari

Act.

3. On receipt of summons, the accused appeared at the

trial court. After hearing both sides, charge was framed under

Section 8 (1) & (2) of the Abkari Act. The charge was read over

and explained to him who pleaded not guilty. The prosecution Crl.R.P.No.1843/2012

examined PW1 to PW5 and marked Exts.P1 to P7. MO1 was

identified. On the side of the defence, DW1 was examined.

Considering the evidence on record, the trial court found the

accused guilty under Section 8 (1) & (2) of the Abkari Act and

convicted him for the said offence. He was sentenced to undergo

rigorous imprisonment for 4 months and to pay a fine of

`1,00,000/-(Rupees one lakh), in default to suffer simple

imprisonment for 3 months. The appellate court in appeal

confirmed the said conviction and sentence. The conviction and

sentence passed by both the courts below are under challenge in

this revision petition.

4. I have heard the learned counsel for the revision

petitioner as well as the learned Public Prosecutor.

5. The learned counsel appearing for the revision

petitioner assailed the conviction and sentence passed by both

the courts below on two grounds.

(1) The forwarding note is not produced. (2) The mahazar does

not contain sample seal.

6. The main contention canvassed by the learned counsel Crl.R.P.No.1843/2012

for the revision petitioner is regarding the non production of the

forwarding note. The learned counsel submitted that mere

production of the laboratory report that the sample tested was

contraband substance is not sufficient unless and until the

forwarding note also is produced. This Court in Gireesh @

Manoj v. State of Kerala[2019 KHC 655] has held that in the

absence of the forwarding note marked in evidence, it cannot be

found that the prosecution has proved beyond reasonable doubt

that the very same sample taken at the spot of occurrence had

reached the chemical examiner for analysis in a tamper proof

condition. The forwarding note is the link evidence to show that it

was the same sample which was drawn from the contraband

seized from the accused had eventually reached the chemical

analysis laboratory by change of hands in a tamper proof

condition. Hence, I am of the view that non production of the

forwarding note is fatal to the prosecution.

7. The next point canvassed by the learned counsel is

regarding the absence of sample seal in the mahazar. This Court

in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057)

has held that the specimen seal shall be provided in the seizure Crl.R.P.No.1843/2012

mahazar and also in the forwarding note, so as to enable the

court to satisfy the genuineness of the sample produced in the

court. It was also observed in the said judgment that the nature

of the seal used shall be mentioned in the seizure mahazar. A

perusal of Ext.P1 mahazar would show that it does not contain

the sample seal or the description of the seal used.

8. The aforesaid vital aspects were not taken into

consideration by the courts below while appreciating the

prosecution case. For the reasons stated above, I am of the view

that the conviction and sentence passed by the courts below

suffer from illegality and it cannot be sustained.

In the result, the criminal revision petition stands allowed.

The conviction and sentence passed by the courts below vide

impugned judgments are set aside. The revision petitioner is

found not guilty of the offences charged against him and

accordingly he is acquitted. His bail bond is cancelled.

Sd/-

                                            DR. KAUSER EDAPPAGATH
                                                         JUDGE
kp                           True copy
                                P.A. To Judge