Maheem vs State Of Kerala
2022 Latest Caselaw 8252 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                   CRL.A NO. 1475 OF 2006
  AGAINST THE ORDER/JUDGMENT IN CP 254/2000 OF JUDICIAL
       MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA
   SC 895/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT
                     CASES,NEYYATTINKARA
APPELLANT/ACCUSED:

          MAHEEM
          AGED 1 YEARS
          S/O.MASTHANKANNU,PLANKALA PUTHENVEEDU, AYIRA
          DESOM,, CHENKAVILA, KARODE VILLAGE.
          BY ADV SRI.BLAZE K.JOSE


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY THE EXCISE INSPECTOR, THIRUPURAM
          EXCISE RANGE,, REP. BY PUBLIC PROSECUTOR, HIGH
          COURT OF KERALA.
          BY ADV PUBLIC PROSECUTOR

          SMT T V NEEMA- SR PP


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL. A NO. 1475 of 2006


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                              JUDGMENT

This is an appeal filed by the accused under Section

374(2) of the Code of Criminal Procedure (for short 'Cr.P.C.')

against the judgment of conviction and sentence passed by the

Additional Sessions Court, (for trial of Abkari Act Cases),

Neyyattinkara (for short, "the Court below") in S.C.

No.895/2001 dated 20.06.2006.

2. The accused faced trial for the offence

punishable under Sections 55(a) of the Abkari Act.

3. The prosecution case in short is that on 12.02.1998 at

about 12.15. p.m., the appellant was found in possession of 3

litres of arrack in contravention of the Abkari Act and the Rules

and thereby committed the offence.

4. On receipt of summons, the appellant appeared at the

Court below. After hearing both sides, the charge for the CRL. A NO. 1475 of 2006

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offence punishable under Sections 55(a) of the Abkari Act was

framed against the accused. The charge was read over and

explained to the accused who pleaded not guilty.

5. The prosecution examined PWs 1 to 5 and marked

Exts.P1 to P7. MO1 was identified. Considering the evidence

on record, the court below found the appellant guilty for the

offence punishable under Section 58 of the Abkari Act and he

was convicted for the said offence. The accused was sentenced

to undergo rigorous imprisonment for a period of two years and

to pay a fine of Rs.1,00,000/-, in default to suffer rigorous

imprisonment for a period of three months. Aggrieved by the

conviction and sentence, the appellant preferred this appeal.

6. I have heard Sri.Blaze K Jose, the learned counsel for

the appellant and Smt. T.V. Neema, the learned Public

Prosecutor.

7. A perusal of the records would show that the CRL. A NO. 1475 of 2006

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forwarding note by which the contraband article was forwarded

to the Chemical Analysis Laboratory has not been produced. A

mere production of the laboratory report that the sample tested

was contraband substance is not sufficient unless and until the

forwarding note also is produced.

8. This Court in Gireesh @ Manoj v. State of Kerala

[2019 KHC 655] has held that 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 sample

taken at the spot of occurrence had reached the chemical

examiner for analysis in a tamper proof condition. The

forwarding note is the link evidence to show that it was the same

sample which was drawn from the contraband seized from the

accused had eventually reached the Chemical Analysis

Laboratory by change of hands in a tamper proof condition.

Hence, I am of the view that non production of the forwarding CRL. A NO. 1475 of 2006

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note is fatal to the prosecution.

9. Ext. P1 is the mahazar. A perusal of Ext. P1 would

show that it does not contain the sample seal or the description

of the seal used. This Court in K.Bhaskaran v. State of

Kerala (2020(5) KLT Online 1057) has held that the specimen

seal shall be provided in the seizure mahazar and also in the

forwarding note, so as to enable the court to satisfy the

genuineness of the sample produced in the court. It was also

observed in the said judgment that the nature of the seal used

shall be mentioned in the seizure mahazar. As already stated,

Ext.P1 mahazar does not show either the sample seal or the

description of the sample seal used.

10. For the reasons stated above, I am of the view that

the conviction and sentence passed by the court below cannot be

sustained.

11. Accordingly, the conviction and sentence passed by CRL. A NO. 1475 of 2006

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the Court below vide the impugned judgment are set aside. The

appellant is found not guilty of the offences charged against him

and accordingly he is acquitted. His bail bond is cancelled.

The appeal is allowed as above.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE RMV/01/07/2022