Kerala High Court
Santhosh vs State Of Kerala on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
CRL.A NO. 95 OF 2013
AGAINST THE ORDER OF CONVICTION AND SENTENCE IMPOSED ON THE
APPELLANT AS PER JUDGMENT DATED 03-01-2013 IN SC 908/2009 ON THE
FILES OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK,
MAVELIKKARA, ALAPPUZHA
APPELLANT/ACCUSED:
SANTHOSH
AGED 36 YEARS
S/O.CHATHANKUTTY, ARUPATHIL THEKKETHIL,
KANICHANALLOOR MURI, CHEPPAD VILLAGE,
KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.AJITH MURALI
SRI.K.V.ANIL KUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI ARAVIND V MATHEW-PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.95/2013
2
JUDGMENT
This is an appeal filed under Section 374(2) of the Code of
Criminal Procedure against the judgment of conviction and sentence
imposed by the Additional Sessions Court (ADHOC), Fast Track,
Mavelikkara, in S.C.No.908/2009 dated 03-01-2013.
2. The accused/appellant faced trial for offence punishable under
Section 8(1) and (2) of the Kerala Abkari Act.
3. The prosecution case in short is that, on 06.06.2008 at about
6.15 p.m., the accused was found in possession of 10 litres of illicit arrack
at a place in the road leading to Vadakkethundam Junction from west of
Chettikulangara Temple in front of Sangeetha Hardwares, Kannamangalam
Muri, Kannamangalam Village, and there by committed the offence.
4. PW1, the Preventive Officer, Excise Range Office,
Mavelikkara, detected the offence. According to him, on 06.06.2008 at
about 6.15 p.m., he along with PW2, the Excise Guard, were on patrol duty.
When they reached at the place of occurrence, they saw the accused
walking along the road carrying a plastic bag. On suspicion they detained
the accused and on examination of the plastic bag carried by him, it was
found that it contained illicit arrack. PW1 took sample of 200 ml of liquid
in a 375 ml bottle and thereafter the sample bottle and the plastic can
Crl.Appeal No.95/2013
containing the residue were sealed and labelled. PW1 arrested the accused
at the place of occurrence and prepared Exhibit P1 mahazar. He then
produced the accused and seized articles before the PW5, the Excise
Inspector.
4. PW5 registered the crime. Exhibit P4 is the occurrence report.
PW6, the Excise Inspector, Excise Circle Office, Alappuzha, conducted the
investigation. The sample was sent for chemical analysis and after
chemical analysis the report was received and marked as Exhibit P6. The
certificate of chemical analysis show that the sample contained 46% by
volume of ethyl alcohol. After completing the investigation, PW6, the
Investigating Officer, has laid the final report before the Judicial First Class
Magistrate Court, Mavelikkara. The learned Magistrate committed the case
to the Sessions Court for trial.
5. After hearing both sides, the charge under Sections 8 (1) and
(2) of the Abkari Act was framed, read over and explained to the accused
who pleaded not guilty.
6. The prosecution examined PWs 1 to 6. Exts.P1 to P6 were also
marked. Material objects were identified and marked as M.Os.1 and 2. On
conclusion of prosecution evidence, the accused was questioned under
Section 313 (1)(b) Cr.P.C. He denied all the incriminating circumstances.
7. After hearing counsel on both sides, by the impugned
Crl.Appeal No.95/2013
judgment, the learned Sessions Judge, found the appellant/accused guilty of
offence punishable under Section 8(1) and (2) of the Abkari Act and
sentenced him to undergo rigorous imprisonment for two years and to pay a
fine of Rs.2,00,000/- (Rupees Two Lakhs only), in default to undergo
rigorous imprisonment for further period of six months. The said judgment
is under challenge in this appeal.
8. I have heard Smt. Swapna Vijayan, the learned counsel for the
appellant/accused and Sri. Aravind V. Mathew, learned Public Prosecutor.
9. The learned counsel for the appellant submitted that the
conviction and sentence are unsustainable on the ground that the
prosecution had failed to produce and prove the forwarding note by which
the sample was sent for chemical analysis. I find some force in the said
argument. It is true that Exhibit P6 chemical analysis report would show
that the sample contained ethyl alcohol. But mere report of the chemical
analysis that the sample tested was contraband substance is not sufficient
unless and until the forwarding note also is produced. This Court in
Gireesh alias Manoj v. State of Kerala (2019 KHC 655) has held that in
the absence of the forwarding note marked in evidence, it cannot be held
that prosecution has proved beyond reasonable doubt that the very same
sample taken at the place of occurrence had reached the chemical examiner
for analysis in a tamper proof condition. The forwarding note is the link
Crl.Appeal No.95/2013
evidence to show that it was the same sample which was drawn from the
contraband seized from the accused which eventually reached the hands of
the chemical examiner in a tamper proof condition. Hence the non
production of it is fatal to the prosecution case. This vital aspect was not
taken into consideration by the court below while taking into account the
prosecution evidence. In the circumstances, I find that conviction and
sentence passed by the court below cannot be sustained.
In the result. the appeal stands allowed. The conviction and
sentence passed by the court below vide impugned judgment is set aside.
His bail bond shall stand cancelled and he shall be set at liberty. Fine
amount, if any, collected shall be refunded.
Appeal is allowed as above.
Sd/-
Dr.KAUSER EDAPPAGATH
JUDGE
SSK/07/10
