Kerala High Court
Shaji, S/O. Raghavan vs State Of Kerala on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
CRL.A NO. 1477 OF 2007
AGAINST THE JUDGMENT DATED 09-07-2007 IN SC 110/2007 OF ADDITIONAL
DISTRICT COURT (ADHOC)-I, KOTTAYAM, KOTTAYAM
APPELLANT/ACCUSED:
SHAJI,
S/O. RAGHAVAN,
THAIPARAMBIL VEEDU,
VELOOR VILLAGE, KOTTAYAM.
BY ADVS.
C.S.MANILAL
P.T.REGI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI. SANGEETH RAJ, PUBLIC PROSECUTOR.
OTHER PRESENT:
SRI. SANGEETH RAJ (PP)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.1477/2007 -2-
JUDGMENT
This appeal has been filed challenging conviction and sentence imposed on
the appellant/accused in S.C. No.110/2007 on the file of the Additional Sessions
Judge (Adhoc)-1, Kottayam for prosecution under Section 55 (a) & (i) of the
Abkari Act. The gist of the prosecution case is that on 01-03-2006 at about 5.30
p.m. the accused was found in possession of 30 litres of toddy in a country boat
at Puthenthodu near Vettikkattumukku kadavu in Thiruvarppu village of
Kottayam District for the purposes of sale and thereby he committed offence
punishable under Section 55 (a) & (i) of the Abkari Act. Following investigation
of the case a final report was filed before the Judicial First Class Magistrate
Court-I, Kottayam which was committed to the Sessions Court for trial and
disposal. The case was made over to the Additional Sessions Judge (adhoc)-I,
Kottayam which framed charges under Sections 55 (a) & (i) of the Abkari Act. On
the appellant/accused pleading not guilty, trial was conducted. The prosecution
examined PWs 1 to 7 marked Exts.P1 to P7 and (xi) and identified M.Os 1 to 5
series. Following closure of prosecution evidence the appellant/accused was
examined under section 313 Cr.P.C. The appellant/accused examined himself as
DW1 and marked Exts. D1 to D3. On an appreciation of the evidence the trial
court convicted the appellant/accused for offences under Sections 55 (a) & (i) of
the Abkari Act and sentenced him to undergo rigorous imprisonment for one
year together with a fine of Rs.1,00,000/- and in default of payment of fine to
undergo rigorous imprisonment for a further period of 6 months. Set off as
permissible in law was also granted.
2. The learned counsel for the appellant would submit that the appeal is
liable to be allowed and the appellant/accused acquitted on a short point which
is that the prosecution has failed to produce and mark the forwarding note, as a
result of which the link between the material seized from the possession of the
appellant/accused and the chemical analysis report has been broken. He
submits that going by the law laid down by this court, the production and
marking of the forwarding note through which the sample was forwarded for
chemical analysis is crucial for a successful prosecution under the provisions of
the Abkari Act. In Ramachandran v. State of Kerala; 2021 (1) KLT 793
it was held as follows:-
"8. In Ravi v. State of Kerala (2011 (3) KLT 353), the Division Bench of
this Court held that the prosecution in a case under the Abkari Act could
succeed only if it is shown that the contraband liquor which was
allegedly seized from the accused ultimately reached the hands of the
chemical examiner by change of hands in a tamper proof condition.
9. Since no forwarding note was produced and marked in this case, the
prosecution could not establish the tamper - proof despatch of the
sample to the laboratory. In the said circumstances, there is no
satisfactory link evidence to show that it was the same sample which
was drawn from the contraband seized from the appellant, which
eventually reached the hands of the chemical examiner by change of
hands in a tamper - proof condition. In the said circumstances also, the
appellant is entitled to benefit of doubt."
3. A perusal of the records will show that the prosecution did not
produce or mark the forwarding note in this case. In the light of the law laid
down in Ramachandran (supra) it cannot be held that the prosecution has
been successful in establishing its case against the appellant/accused. There is
nothing to prove that the material seized from the appellant/accused was toddy
as alleged by the prosecution. In that view of the matter the appellant/accused is
entitled to succeed. In the result this appeal is allowed and the conviction and
sentence imposed on the appellant/accused in S.C. No.110/2007 on the file of
the Additional Sessions Judge (Adhoc)-1, Kottayam is set aside and the
appellant/accused is acquitted.
Sd/-
GOPINATH P.
JUDGE
AMG
