Kerala High Court
Majeed Kunju,S/O Hydrose Kunju vs Sub Inspector Of ... on 1 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
CRL.A NO. 1702 OF 2006
AGAINST THE JUDGMENT IN S C NO.711/2003 OF ADDITIONAL DISTRICT &
SESSIONS COURT (ADHOC)II, KOLLAM
APPELLANT/FIRST ACCUSED:
MAJEED KUNJU,S/O.HYDROSE KUNJU,
CHIRIYIL PUTHEN VEEDU, NJARACKAL CHERRY,
THRIKKADAVOOR VILLAGE.
BY ADV T.M.ABDUL LATIFF
RESPONDENTS(ACCUSED & STATE):
1 SUB INSPECTOR OF POLICE,
ANCHALUMMOODU.
2 STATE OF KERALA, REPESENTED BY THE
PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
BY SRI. RANJITH GEORGE, GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1702 OF 2006
2
JUDGMENT
The appellant is the first accused in S.C No.711 of 2003 on the file of
the Additional District & Sessions Judge (Adhoc) II, Kollam. The gist of
the prosecution allegation is that on 12.08.2001, the appellant/first
accused together with another person was found engaging themselves in
the illicit sale of arrack. The contraband article were seized together with
certain currency notes, samples were taken, a mahazar was prepared and
the contraband articles were produced before the Judicial First Class
Magistrate Court, Kollam. The samples were sent for chemical
examination and a report was obtained, which shown that the contraband
article were illicit arrack.
2. The learned counsel appearing for the appellant would
contend that apart from various contentions are available to be raised in
the matter, this appeal is liable to be allowed and the accused is acquitted
on a short ground which is that the forwarding note through which the
samples were forwarded to the office of the chemical examiner has not
been produced or marked in this case
3. Following the trial of the case, the appellant/first accused was
found guilty of having committed the offence under Section 8(1)of the
CRL.A NO. 1702 OF 2006
Abakari Act and was convicted to undergo rigorous imprisonment for a
term of 5 years and to pay a fine of Rs.5,00,000/- and in default of
payment of fine to undergo simple imprisonment for a further term of two
years.
4. A perusal of the records in this case shows that the learned
counsel for the appellant is right in contending that the forwarding note
has neither been produced nor marked as evidence in this case. This is
fatal to the prosecution case as the identity of the sample is doubtful.
5. 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."
CRL.A NO. 1702 OF 2006
To the same effect is the judgment of this Court in Unnikrishnan Nair
v. State of Kerala; 2020 (4) KLT 376.
In the result, this appeal is allowed. The conviction and sentence
imposed on the appellant/first accused in S.C No.711 of 2003 on the file of
the Additional District & Sessions Judge (Adhoc) II, Kollam will stand set
aside and the accused will stand acquitted.
Sd/-
GOPINATH P.
JUDGE
DK
