Kallukadambil Jose vs Excise Inspector
2021 Latest Caselaw 23166 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
                          CRL.A NO. 2230 OF 2007
  AGAINST THE ORDER/JUDGMENT IN SC 168/2003 OF ADDITIONAL SESSIONS
                  COURT (ADHOC)-III, THALASSERY, KANNUR
APPELLANT/ACCUSED:

           KALLUKADAMBIL JOSE,
           S/O VARGHESE, KANICHAR AMSOM,, PADINJARE VELLOONNI,
           THALASSERI TALUK.

           BY ADVS.
           SRI.H.BADARUDDIN
           SRI.C.A.JOSEPH



RESPONDENTS:

     1     EXCISE INSPECTOR,
           PERAVOOR RANGE, PERAVOOR P.O.,, THALASSERY TALUK, KANNUR
           DISTRICT.

     2     STATE OF KERALA REPRESENTED BY
           PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

           BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

           SRI SANAL P RAJ,PP


    THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2230 OF 2007              2




                             JUDGMENT

This appeal has been filed by the accused in S.C.No.

168/2003 on the file of the Additional Sessions Court, (Adhoc-

III), Thalasseri challenging the judgment dated 16.10.2007

convicting him under Sections 8(1) and 55(a) of the Abkari Act.

2. The prosecution case in short is that on 07.07.1999

at about 4.00 p.m., the accused was found in possession of 5

litres of illicit arrack in a can at Padinjare Vellunni in Kanichar

in contravention of the Abkari Act and Rules.

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

court below. After hearing both sides, the court below framed

charge against the accused under Sections 8(1) and 55(a) of

the Abkari Act. The charge was read over and explained to the

accused, who pleaded not guilty.

4. The prosecution examined PW1 to PW3 and Exhibits

P1 to P7 were marked. MO1 was identified. No defence

evidence was adduced.

5. After trial, the court below found that the accused

has committed offence punishable under Section 8(2) of the

Abkari Act and he was convicted for the said offence. The

accused was sentenced to undergo Rigorous Imprisonment for

a period of six months and to pay a fine of Rs.1,00,000/-, in

default, to suffer simple Rigorous Imprisonment for a period of

one month as per the impugned judgment. Aggrieved by the

said conviction and sentence, the accused preferred this

appeal.

6. Heard both sides.

7. PW2 is the detecting officer. He prepared Ext.P3

mahazar at the time of the seizure of the contraband articles.

According to him, he drew sample from the contraband article

and it was properly labelled, sealed and packed. A perusal of

Ext.P3 would show that it does not contain the sample seal or

the description of the seal used. This court in K.Bhaskaran Vs.

State of Kerala [2020(5) KLT online 1057] has held that

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 the nature of the seal

used shall be mentioned in the seizure mahazar.

8. Ext.P5 is the property list. In Ext.P5 also, the sample

seal or description of the seal was not mentioned. In the

absence of the seal in the mahazar, it cannot be found that the

prosecution has proved beyond reasonable doubt that, the very

same sample taken out of the spot of occurrence had reached

the Chemical Examiner for analysis in a tamper proof

condition. Hence, I am of the view that, the conviction and

sentence passed by the court below cannot be sustained.

In the result, this Crl.Appeal is allowed. The conviction

and sentence passed by the court below vide impugned

judgment are set aside. The appellant is found not guilty of the

offence charged against him and is acquitted. His bail bond is

cancelled.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE

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