Sreedharan vs State Of Kerala
2021 Latest Caselaw 22795 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
    SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                          CRL.A NO. 2303 OF 2006
  AGAINST THE ORDER DATED 04-10-2006 IN SC 1000/2001 OF ADDITIONAL
  S.C.-TRIAL OF ABKARI ACT CASES, NEYYATTINKARA, THIRUVANANTHAPURAM



APPELLANT/ACCUSED:

           SREEDHARAN
           S/O. CHELLAN, MURUKAVILASOM BUNGLOW, ARATTUKUZHY,
           VELLARADA VILLAGE, NEYYATTINKARA TALUK.

           BY ADV SRI.G.SUDHEER


RESPONDENT/COMPLAINANT:

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

OTHER PRESENT:

           ADV. SRI.SANGEETH RAJ (P.P)

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.2303/2006                -2-

                                JUDGMENT

This appeal has been filed by the sole accused in S.C No.1000/2001 on the

file of the Additional Sessions Judge for trial of Abkari Act cases, Neyyattinkara.

The appellant/accused was charge-sheeted for under Section 58 of the Abkari

Act. The gist of the prosecution case is that on 16-01-2000, on receiving

information of arrack being sold illegally in a rubber plantation, the accused was

found in the land in question in possession of a 10 litre black jerrycan containing

8 litres of arrack and a glass tumbler in contravention of the provisions of the

Abkari Act. The accused tried to flee from the spot but was apprehended and

questioned and he admitted that the arrack in his possession was for sale.

Following the trial, the appellant was convicted of the offence under Section 58

of the Abkari Act and sentenced to undergo rigorous imprisonment for a period

of 2 years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous

imprisonment for period of 3 months.

2. The learned counsel for the appellant would submit that the

sampling, in this case, was admittedly by the Thondi Section Clerk (properly

clerk) attached to the Judicial First Class Magistrate Court-II, Neyyattinkara.

The issue as to whether the Thodi Section Clerk attached to the Judicial First

Class Magistrate Court is competent to effect sampling has been considered in

detail by this court in the judgment reported in Baburaj v. State of Kerala;

2021 (6) KHC 92. It was held that the act of taking samples through the Thondi

Section Clerk of the Magistrate Court is not a procedure contemplated by law. It

has also been held that the Magistrate himself is not competent to draw sample

from the contraband produced before him by the Detecting officer..

3. I am in respectful agreement with the view taken in the decision

referred to above. In that view of the matter and without going into any other

issue, this appeal is liable to be allowed.

4. In the result this appeal is allowed and the conviction and sentence

imposed on the appellant/accused in S.C No.1000/2001 on the file of the

Additional Sessions Court for the trial of Abkari Cases, Neyyattinkara is set

aside. The appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE AMG