Kerala High Court
Rajeev vs State Of Kerala on 3 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
CRL.A NO. 2318 OF 2006
AGAINST THE JUDGMENT DATED 30.10.2006 IN S.C.NO.709/2004 OF THE
ADDITIONAL SESSIONS COURT, FAST TRACK COURT - II, ALAPPUZHA
APPELLANT/ACCUSED:
RAJEEV, S/O.BALAN
AGED 36 YEARS,
AIRAPPALLY VEEDU, THAKAZHY PACCHAYATH,WARD NO.1,
ALAPPUZHA.
BY ADVS.
SRI.PRAKASH P.GEORGE
SRI.BOBAN VARGHEESE
SRI.P.C.JOSEPH
SRI.B.PREMNATH
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY SUB INSPECTOR OF POLICE AMBALAPPUZHA,
ALAPPUZHA DISTRICT THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI. RANJITH GEORGE, GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A No. 2318 OF 2006
2
JUDGMENT
This appeal is filed challenging the conviction and
sentence imposed on the appellant/accused in S.C.No.709 of
2004 on the file of the Additional Sessions Judge, Fast Track
Court - II, Alappuzha for offences under Section 55(a) and 55(i)
of the Kerala Abkari Act. The appellant was found transporting
7.750 litres of Indian made foreign liquor in an auto rickshaw on
27.07.2002. It is alleged that by the said act of transporting
Indian made foreign liquor, in excess of the quantity prescribed,
the appellant/accused had committed the offences punishable
under the aforesaid provisions of the Abkari Act. Following
investigation, the final report was filed before the Judicial First
Class Magistrate Court, Ambalapuzha. The matter was
committed to the court of Session and finally made over to the
Additional Sessions Judge, Fast Track Court - II, Alappuzha for
the purpose of trial. The appellant/accused pleaded not guilty
to the charges framed against him, following which, a trial was
conducted. The court found the appellant/accused guilty of the
offences and therefore, convicted him and sentenced him to
undergo simple imprisonment for a period of one year and to
CRL.A No. 2318 OF 2006
pay a fine of Rs.1,00,000/- and in default to undergo simple
imprisonment for a further period of two months under Section
55(a) of the Kerala Abkari Act. No separate sentence was
imposed for the offence under Section 55(i) of the Kerala Abkari
Act.
2. Sri. Prakash P George, the learned counsel appearing
for the appellant contends that the appeal is liable to be allowed
on two short technical points. Firstly, he submits that the
forwarding note through which the samples were forwarded for
the chemical examination has not been produced or marked
during the trial of the case. He further submits that though the
contraband was seized on 27.07.2002, it was produced before
the Magistrate Court only on 02.08.2002. The delay in
production of the contraband article, according to the learned
counsel is another circumstance which would be a factor in
favour of the appellant/accused in as much as there was no
satisfactory explanation for the delay caused in production of
the contraband article before the court.
3. The learned Public Prosecutor refers to the impugned
judgment and contends that both the technical points raised by
the learned counsel for the appellant would be relevant only if
CRL.A No. 2318 OF 2006
there was a failure to establish a link between the contraband
seized from the appellant/accused and the sample forwarded
for chemical analysis through the court. He submits that the
identity of the sample cannot be disputed especially since the
contraband was admittedly Indian made foreign liquor.
4. In Sadasivan @ Para v. State of Kerala and
another [2020 KHC 478] where this Court after referring to the
earlier judgments rendered by this Court, held in paragraph 12
as follows:
"12. This court, in several decisions considered the relevancy of
the forwarding note. Some of the decisions are Gireesh @ Manoj
v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan
and another v. State of Kerala (2018 (2) KHC 814) and Prakasan
and another v. State of Kerala(2016 KHC 96). The relevant portion
of the judgment in Gireesh's case (supra) extracted hereunder:
"14. There is another lacuna in the prosecution case. The copy of the
forwarding note prepared by PW5 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 KHC 96 : 2016 (1)
KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State
of Kerala(2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).""
In the light of the law laid down by this Court in Sadasivan
(supra), I am of the opinion that the failure to produce and mark
the forwarding note is a serious flaw, which is fatal to the
prosecution case. The failure to produce and mark the
CRL.A No. 2318 OF 2006
forwarding note is a crucial link for establishing that the alleged
contraband seized from the appellant/accused is Indian made
foreign liquor. Without proof of the fact that the contraband
seized was Indian made foreign liquor, the appellant/accused
cannot be convicted for offences under Sections 55(a) and 55(i)
of the Kerala Abkari Act, in the facts and circumstances of this
case.
In the result, this appeal is allowed and the conviction and
sentence imposed on the appellant in S.C.No.709 of 2004 on the
file of the Additional Sessions Judge, Fast Track Court - II,
Alappuzha is set aside. The appellant/accused will stand
acquitted.
Sd/-
GOPINATH P.
JUDGE
DK
