[email protected] vs State Of Kerala
2021 Latest Caselaw 20420 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                         CRL.A NO. 2366 OF 2006
   AGAINST THE JUDGMENT IN SC 29/2004 OF ADDITIONAL DISTRICT &
     SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:

            [email protected]
            S/O.CHELLAYYAN, NELLIVILAKATHU VEEDU, POOVAR,,
            VLATHANKARA, MACHIYODU DESOM, CHENKAL VILLAGE,
            NEYYATTINKARA.

            BY ADV G.SUDHEER


RESPONDENT/COMPLAINANT:


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




            BY ADV. SRI. RENJIT GEORGE (PP)


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2366/2006

                                    2

                             JUDGMENT

This appeal has been filed challenging the sentence and

conviction imposed on the appellant in S.C.No.29/2004 on the file of

the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram, in

a prosecution under Sections 55(a) r/w 8(1) of the Abkari Act.

2. The gist of the prosecution case is that on 03.12.2001 at

about 12:30 p.m. while PW3 and other officials were on patrol duty,

they found the appellant/1st accused in possession of 1 litre of illicit

arrack in a black jerry can, for the purpose of sale. It was alleged that

the appellant/1st accused together with 2nd accused were also found in

possession of another 26 litres of spirit and 10½ litres of arrack mixed

with spirit and another 2 litres of arrack, which showed that they were

in the process of manufacture of illicit arrack and by their aforesaid

acts, they committed offences under Sections 55(a) r/w 8(1) of the

Abkari Act. The 2nd accused died pending trial. Therefore the

appellant/1st accused alone was tried.

3. Following investigation of the case, a final report was filed

before the Judicial First Class Court-II, Neyyattinkara from where it

was committed to the Court of Sessions, Thiruvananthapuram as the

offence was exclusively triable by a Court of Session. The matter was Crl.A.No.2366/2006

initially made over to the Additional Sessions Court, Neyyattinkara and

was thereafter transferred to the Additional District and Sessions Court

(Fast Track-I), Thiruvananthapuram for trial and disposal. Since

accused no.2 had died pending trial, charges were framed against the

appellant/1st accused under Sections 55(a) r/w 8(1) of the Abkari Act.

The appellant/1st accused pleaded not guilty and the prosecution led

evidence by examining as PWs1 to 7, marking Exts.P1 to P7 and

indentifying MOs1 to 6 material objects. Following the closure of

prosecution evidence, the appellant/1st accused was questioned under

Section 313 Cr.P.C and he denied all the incriminating materials

against him. The defence was called to tender evidence as the court

found no reason to acquit the appellant/1st accused at that stage.

However, no defence evidence was adduced. On an appreciation of the

prosecution evidence, the learned Trial Judge came to the conclusion

that the prosecution had succeeded in proving the case against the

appellant/1st accused and therefore convicted him under Sections 55(a)

r/w 8(1) of the Abkari Act. After hearing the appellant/1 st accused on

the question of sentence, the learned Trial Judge sentenced the

appellant/1st accused to rigorous imprisonment for three years and to

pay a fine of Rs.1,00,000/- in default to undergo rigorous Crl.A.No.2366/2006

imprisonment for a period of one year. The period from 26.02.2002 to

04.04.2002 was allowed as set off under Section 428 Cr.P.C .

4. Today, when the matter is taken up for consideration, the

learned counsel for the appellant/1 st accused submits that the appeal is

liable to be allowed on a short point. He submits that this is a case

where the prosecution had failed to produce and mark the Forwarding

Note through which the samples of the contraband seized from the

appellant/1st accused was forwarded for chemical analysis and that this

is fatal to the prosecution case. He also submits that the arrest memo

was neither produced or marked in the case.

5. I have heard the learned Public Prosecutor also.

6. I have perused the records and satisfied that the

prosecution has failed to produce and mark the Forwarding Note

together with the seal used in the samples in evidence. Therefore, the

prosecution failed to establish any link between the contraband seized

from the appellant/1st accused and the chemical analysis report. This

Court considered an identical question in Gireesh v. State of

Kerala; 2019 (4) KLT 79, where in paragraphs 14 and 15, it was

held as follows:-

"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by P.W.5 for sending the samples for chemical analysis was not Crl.A.No.2366/2006

marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. 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 samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96)=2016 (1) KLD 311) and Gopalan v. State of Kerala(2016 (3) KLT SN 24(C.No.16)=2016(2)KLD 469). 15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner."

7. In the light of the above and following the ratio of the

judgment of this Court in Gireesh v. State of Kerala (supra), I am

of the view that the appeal is liable to be allowed. In the light of the

finding on this point, it is not necessary to consider any other point.

In the result, this appeal is allowed. Conviction and

sentence imposed on the appellant/accused in S.C.No. 29/2004 on the

file of the Additional Sessions Judge (Fast Track-I),

Thiruvananthapuram, will stand set aside and the appellant/1 st accused

will stand acquitted.

Sd/-

GOPINATH P.

WW                                                   JUDGE