Swamidas vs State Of Kerala
2021 Latest Caselaw 18202 Ker

              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. 33 OF 2013
AGAINST THE JUDGMENT DATED 05.12.2012 IN SC 120/2012 OF ADDITIONAL
             DISTRICT COURT (ADHOC)I, KALPETTA, WAYANAD
APPELLANT/ACCUSED:

            SWAMIDAS
            S/O MOTTY MALLAPY GOWDER, AGED 38 YEARS,
            SAMBATH KOLLY HOUSE, BAIRAKUPPA DESOM, D B KUPPA
            VILLAGE, H.D KOTTA, KARNATAKA STATE

            BY ADV SRI.K.ANTONY JOSEPH



RESPONDENT/COMPLAINANT:

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




            BY SRI. SANGEETH RAJ, 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. 33 of 2013

                                2


                            JUDGMENT

This appeal has been filed challenging the conviction and

sentence imposed on the appellant/accused in S.C.No.120 of

2012 on the file of the Additional Sessions Judge (Adhoc)-I,

Kalpetta, Wayanad for offences under Sections 8(1) and (2) of

the Abkari Act.

2. The gist of the prosecution case is that at about

4.20pm on 20.03.2004, the accused and two others were

found carrying a total of 1450 packets of arrack, each

containing 100 ml each. All the three persons attempted to

escape, but the appellant/accused was apprehended, while the

others managed to escape to Karnataka. Following

investigation of the case, a final report was filed before the

Judicial First Class Magistrate Court-II, Mananthavady. On the

case being committed to the court of Sessions, charges were

framed and on the appellant/accused pleading not guilty, trial

was conducted. The appellant/accused was found guilty for

having committed offences punishable under Sections 8(1)

and (2) of the Abkari Act and was sentenced to undergo

rigorous imprisonment for three years and to pay a fine of CRL.A No. 33 of 2013

Rs.1,00,000/- and in default of payment of fine to undergo

simple imprisonment for a further period of one year. Set off

as permissible under law was also permitted.

3. PW1, the Excise Inspector, who was also the

detecting officer has tendered evidence regarding the

apprehension of the appellant/accused on 20.03.2004 and the

sampling, affixing of seals etc. PW2, who was an officer

accompanying the Excise Inspector has corroborated in every

respect the evidence tendered by PW1. PWs3 and 4, who are

independent witnesses and have affixed their signatures on

Ext.P1 Arrest memo and Ext.P2 Seizure mahazar had denied

that they witnessed the incident though they had admitted

their signatures. PW5 is the Preventive Officer, who registered

the crime and prepared the Occurrence report. Ext.P3

Occurrence report, Ext.P4 Property list and Ext.P5 Forwarding

note and Ext.P6 Remand report were marked through him.

PW6 was the then Circle Inspector of Excise, Mananthavady

and who conducted the investigation in the case deposed

regarding the preparation of Ext.P7 Scene mahazar and

regarding the conduct of investigation and the interrogation of

witnesses. He also identified and marked Ext.P8 certificate of CRL.A No. 33 of 2013

chemical examination. The same witness had also filed the

charge sheet after completing the investigation. On a

consideration of the evidence, the learned Sessions Judge

came to the conclusion that the appellant/accused was guilty

of the offences and had convicted and sentenced the accused

in the manner already noticed.

4. Ext.P2 is the Seizure mahazar prepared on

20.03.2004(the date of the incident). Ext.P5 is the forwarding

note for sending samples for chemical examination. It is

evident that the sample seal affixed on the forwarding note

finds no mention in Ext.P2 seizure mahazar. It is settled that

the identity of the sample must be established with reference

to the seal affixed on the sample bottles at the time of

sampling, which in this case is on 20.03.2004(the date of the

incident). Though the forwarding note bears the sample of the

seal, the mahazar does not reveal the nature or identity of the

seal that was affixed on the sample. Therefore, there is a clear

lack of identity between the sample and the contraband

allegedly seized from the appellant/accused. In that view of

the matter, the appellant/accused is entitled to be acquitted. CRL.A No. 33 of 2013

In the result, this appeal is allowed. The conviction and

sentence imposed on the appellant/accused in S.C.No.120 of

2012 on the file of the Additional Sessions Judge (Adhoc)-I

Kalpetta, Wayanad is set aside and the appellant/accused is

acquitted.

Sd/-

GOPINATH P.

JUDGE DK