Vijayan vs State Of Kerala
2021 Latest Caselaw 20540 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. 1554 OF 2006
 AGAINST THE JUDGMENT IN SC 396/2002 OF ADDITIONAL DISTRICT COURT
                     (ADHOC)-II, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:

            VIJAYAN,
            S/O. KRISHNANKUTTY, PUTHUVAL PUTHEN VEEDU,
            CHENKOTTUKONAM, AYIROOPPARA VILLAGE.

            BY ADVS.
            SRI.M.RAJAGOPALAN NAIR
            SRI.G.BIJU


RESPONDENT/COMPLAINANT:

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


            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.1554/2006

                                     2




                               JUDGMENT

This appeal has been filed challenging the conviction and

sentence imposed on the appellant in S.C.No.396/2002 on the file of the

Additional Sessions Judge, Fast Track-III, Thiruvananthapuram in a

prosecution under Sections 8(1) and (2) of the Abkari Act.

2. The gist of the prosecution case is that on 04.03.1999 while

PW4, and other officials were on patrol duty, they found the

appellant/accused in possession of a 5 litre black jerry can containing

illicit arrack. The appellant/accused was arrested and the contraband

articles were seized.

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

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

committed to Court of Sessions, Thiruvananthapuram as the case was

exclusively triable by a Court of Session. The matter was made over to the

Additional Sessions Court, Fast Track-III, Thiruvananthapuram where

the charges were framed under Sections 8(1) and (2) of the Abkari Act.

The appellant/accused pleaded not guilty and the prosecution led

evidence by examining PWs1 to 6, marking Exts.P1 to P9 documents and

indentifying MO1 material object. Following the closure of prosecution

evidence, the appellant/accused was questioned under Section 313 Crl.A. No.1554/2006

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/accused at that stage. However, no defence

evidence was adduced. On a consideration of the evidence tendered by

the prosecution, the learned Sessions Judge came to the conclusion that

the prosecution had succeeded in proving the case against the

appellant/accused and therefore convicted him under Sections 8(1) and

(2) of the Abkari Act. After hearing the appellant/accused on the

question of sentence, the learned Sessions Judge imposed a sentence of

simple imprisonment for one year and to pay a fine of Rs.1,00,000/- in

default to undergo simple imprisonment for a period of three months.

The period of remand from 04.03.1999 to 31.03.1999 was allowed as set

off.

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

learned counsel for the appellant/accused contends that the appeal is to

be allowed on a short point without considering any other issue raised in

the appeal. 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/accused were

forwarded for chemical analysis and that this is fatal to the prosecution

case.

Crl.A. No.1554/2006

5. I have perused the records and am 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/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 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."

6. 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. Crl.A. No.1554/2006

In the result, this appeal is allowed. Conviction and sentence

imposed on the appellant/accused in S.C.No.396/02 on the file of the

Additional Sessions Judge, Fast Track - III, Thiruvananthapuram will

stand set aside and the appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE WW