Kerala High Court
Saji vs State Of Kerala on 3 November, 2021
CRL.A NO. 1986 OF 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
CRL.A NO. 1986 OF 2006
AGAINST THE JUDGMENT IN SC 698/2004 OF ADDITIONAL SESSIONS
JUDGE, FAST TRACK COURT -II, ALAPPUZHA
APPELLANT/ACCUSED:
SAJI, S/O.SREEDHARAN,
THYVILAKKATHU VEETIL, PERUMBALLIKKARA MURI,
ARATTUPUZHA VILLAGE.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SMT.KAVITHA GANGADHARAN
RESPONDENT/STATE:
1 STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2 THE EXCISE INSPECTOR
KARTHIKAPPALLY EXCISE RANGE OFFICE, KARTHIKAPPALLY.
BY PUBLIC PROSECUTOR SRI.SANAL P.RAJ
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1986 OF 2006 2
JUDGMENT
Dated this the 3rd day of November, 2021
This is an appeal filed under Section 374(2) of the Code of
Criminal Procedure against the judgment of conviction and
sentence passed by the Additional Sessions Court, Fast Track
Court II, Alappuzha in S.C.No.698/2004 dated 15.9.2006.
2. The accused faced trial for the offences punishable
under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act.
3. The prosecution case in short is that on 28.6.2000 at
4.30 pm., the accused was found transiting 750ml of arrack at the
Public Road on the southern side of Edamon bridge at Perumpally
Village in Alappuzha District, in contravention of the provisions of
the Abkari Act and Rules.
4. On receipt of summons, the accused appeared at the
court below. After hearing both sides, charge was framed against
the accused under Sections 8(1)(2) and 55(a) of the Abkari Act.
The charge was read over and explained to the accused who
pleaded not guilty.
5. The prosecution examined PWs1 to 7 and marked
Exts.P1 to P7. MO1 was identified. On the side of the defence,
Ext.D1 was marked.
6. Considering the evidence on record, the court below
found the accused guilty under Sections 8(1) and (2) and 55(a) of
the Abkari Act. He was sentenced to undergo simple imprisonment
for a period of one year and to pay a fine of Rs.1,00,000/-, in
default to suffer simple imprisonment for a period of two months
for the offence under Section 55(a) of the Abkari Act. No separate
sentence is awarded for the offence under Sections 8(1) and (2) of
the Abkari Act. Aggrieved by the said conviction and sentence,
the accused has preferred this appeal.
7. I have heard Sri.Dileep Ramachandran, the learned
counsel for the appellant and Sri.Sanal P.Raj, the learned Public
Prosecutor.
8. The learned counsel appearing for the appellant
impeached the findings of the court below on an appreciation of
the evidence and the resultant findings as to the guilt on the
ground that the prosecution has failed to prove beyond reasonable
doubt that the very same sample allegedly drawn from the spot of
occurrence had reached the Chemical Examiner for analysis in a
tamper proof condition. The learned counsel highlighted that the
mahazar or property list does not contain any seal. There is no
convincing evidence about affixation of seal in the sample
produced, argued the counsel.
9. The learned Public Prosecutor on the other hand
supported the findings and verdict handed down by the court
below and argued that necessary ingredients of Sections 8(1), (2)
and 55(a) of the Abkari Act had been established and the
prosecution has succeeded in proving the case beyond reasonable
doubt.
10. PW1, is the detecting officer. PW2 is the Guard who
accompanied the detecting officer. PW3 is an independent witness
of the mahazar who did not support the prosecution. PWs 4 and 5
are the investigating officers. PW6 is the officer, who verified the
records and filed the final report. PW7 is the Excise Range Officer,
who registered the FIR.
11. Ext.P1 is the mahazar. In Ext.P1, no seal is seen affixed.
The nature of the seal also is not mentioned. PW1, who detected
the offence, did not depose about the nature of the seal at all.
Ext.P7 is the requisition letter. It was not prepared by PW1, who
detected the offence. On the other hand, it was prepared by PW7.
Ext.P6 is the property list. It also does not contain the seal. The
sample seal was not produced at the court also. 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
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 nature of the seal used
shall be mentioned in the seizure mahazar. In the absence of
sample seal affixed in the mahazar, 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. In
Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]
this Court recently has held that in the absence of any link
evidence to show that the very same sample which was drawn from
the contraband article allegedly seized from the possession of the
accused reached the hands of Chemical Examiner, it is unsafe to
convict the accused. This vital aspect was not taken into
consideration by the court below while appreciating the
prosecution case. For the reasons, I hold that the conviction and
sentence passed by the court below cannot be sustained.
In the result, the Criminal Appeal stands allowed. The
conviction and sentence passed by the court below vide impugned
judgment are set aside. The appellant 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
ab
