Ramachandran vs State Of Kerala
2021 Latest Caselaw 19100 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                          CRL.A NO. 404 OF 2006
 AGAINST THE JUDGMENT DATED 14-02-2006 IN SC 391/2000 OF ADDITIONAL
              DISTRICT COURT-I, MAVELIKKARA, ALAPPUZHA
APPELLANT/ACCUSED:

           RAMACHANDRAN
           AGED 55 YEARS
           S/O.KRISHNAN, PUTHEN VEETTIL VADAKKATHIL, VETTIYAR MURI,
           VETTIYAR VILLAGE, MAVELIKARA.

           BY ADV SRI.R.PADMAKUMAR



RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM.

           BY ADV SRI, RENJIT GEORGE, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.404/2006                  -2-


                                   JUDGMENT

This appeal has been filed challenging conviction and sentence imposed on the

appellant/accused in S.C. No.391/2000 on the file of the Additional Sessions Court-I,

Mavelikkara for an offence punishable under Sections 8 (1) & 8 (2) of the Abkari Act.

The gist of the prosecution case was that on 26-04-1999 the accused was found in

possession of 1 ½ litres of arrack meant of sale in violation of the Abkari Act and he

had thereby committed the offence alleged. Following investigation of the case a final

report was filed before the Judicial First Class Magistrate Court, Mavelikkara which

was committed. The Sessions Court, Alappuzha took cognizance of the case under

Section 55 (a) & (i) and Section 8 (1) & 8 (2) of the Abkari Act and the case was made

over to the Additional Sessions Judge-I, Mavelikkara. Charges were framed under

Section 55 (a) & (i) and Section 8 (1) & 8 (2) of the Abkari Act. Following the accused

entering a plea of not guilty, trial was conducted and PW1 to PW7 were examined and

Exts.P1 to P11 and M.Os 1 to 6 were marked and identified. The accused was

questioned under Section 313 Cr.P.C. and he denied all incriminating materials against

him. He also stated that he was a painter by profession. He was engaged for painting

work in the house of the sister of CW1 and there was a dispute regarding payment of

wages, as a result of which a false case was foisted on him. However, no defence

evidence was adduced.

2. On a consideration of the prosecution evidence, the trial court came to the

conclusion that the appellant/accused was guilty under Sections 8 (1) & 8 (2) of the

Abkari Act and therefore convicted him for the same. He was sentenced to undergo

simple imprisonment for 4 years and a fine of Rs.1,00,000/- and in default to undergo

simple imprisonment for a further period of 6 months. Set off as permissible in law

was also allowed.

3. The learned counsel for the appellant would submit that the appeal is

liable to be allowed on a short point. He submits that the forwarding note through

which the samples were sent for chemical analysis were not produced or marked in the

case. He also submits that the investigating officers namely CW's 8 and 9 who were

examined as PWs 5 and 7 had no territorial jurisdiction to investigate the matter. I

have heard the learned Public Prosecutor also.

4. A perusal of the record shows that Ext.P9 is the report through which the

Sub Inspector of Police, Kurathikadu Police Station requested for forwarding the

samples for chemical analysis. Though Ext.P9 speaks about the preparation of a

forwarding note in the prescribed form, the forwarding note itself was not produced or

marked in the case. Going by the law laid down by this court in Unnikrishnan Nair

v. State of Kerala; 2020 (4) KLT 376 the failure to produce and mark the

forwarding note in evidence is a fatal flaw to the prosecution case. Therefore, without

going into the question as to whether the investigating officers had jurisdiction to

investigate the case, this appeal is allowed on the ground that the prosecution failed to

establish that the sample forwarded for analysis is part of the contraband allegedly

seized from the appellant/accused.

In the result this appeal is allowed. The conviction and sentence imposed on the

appellant/accused in S.C. No.391/2000 on the file of the Additional Sessions Court-I,

Mavelikkara is set aside. The appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE

AMG