Kerala High Court
Murali,S/O.Prabhakara Pillai vs State Of Kerala,Rep on 24 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 683 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 214/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP 62/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM
APPELLANT/ACCUSED NO.1:
RAJAPPAN,S/O SANKARAN,
KOYIKKAL VEEDU, ANAKKARA VILLAGE, ANAKKARA KARA.
BY ADV. P.M.RAFIQ
RESPONDENT/COMPLAINANT - STATE:
STATE OF KERALA,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT. VIDYA KURIAKOSE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2022, ALONG WITH CRL.A.779/2006, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.A NOs. 683 & 779 OF 2006
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 779 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 214/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP 62/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM
APPELLANT/2ND ACCUSED:
MURALI,S/O.PRABHAKARA PILLAI
GIRIJABHAVANAN, 8TH MILE, ANAKKARA P.O.,
IDUKKI DISTRICT.
BY ADVS.
SRI.C.J.JOY
SRI.V.J.JAMES
RESPONDENTS/COMPLAINANT & 1ST ACCUSED:
1 STATE OF KERALA, REPRESENTED
BY SUB INSPECTOR OF POLICE, VANDANMEDU
POLICE, STATION, (CRIME NO. 101/01 OF
VANDANMEDU POLICE STATION), THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA.
2 RAJAPPAN S/O.SANKARAN
KOYIKKAL VEEDU, ANAKKARA VILLAGE AND KARA,
IDUKKI DISTRICT.
BY ADV SMT.VIDYA KURIAKOSE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 24.06.2022, ALONG WITH CRL.A.683/2006, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NOs. 683 & 779 OF 2006
3
P.V.KUNHIKRISHNAN, J.
------------------------------
Crl.Appeal Nos. 683 and 779 of 2006
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Dated this the 24th day of June, 2022
JUDGMENT
These two appeals are filed by the
appellants/accused against the conviction and sentence
imposed on them as per judgment dated 16.03.2006 in
Sessions Case No.214/2004 on the file of the Additional
Sessions Judge (Adhoc) - II, Thodupuzha. The above
case is charge sheeted against the appellants/accused
alleging offences punishable under Section 55(a) and
(i) of the Abkari Act.
2. The prosecution case in brief is like this:
On 07.06.2001 at 1.30 p.m., the accused
were found in possession of 7.380 liters of Indian Made
Foreign Liquor in sixteen, 180 ml bottles and twelve,
375 ml bottles. The offence was detected by CW1, Sub
Inspector of Police, Vandanmedu. On getting
information that accused had stores liquor for sale in
CRL.A NOs. 683 & 779 OF 2006
the building, he searched the building and arrested
accused Nos.1 and 2 and seized the foreign liquor kept
in the building.
3. To substantiate the case, the prosecution
examined PW1 to PW9 and marked Exts.P1 to P8. D1
to D5 are the exhibits marked on the side of the
defence. DW1 to DW3 are the witnesses examined on
the side of the prosecution. MO1 to MO6 are the
Material Objects.
4. After going through the evidences and
documents, the trial court found that the accused
committed the offence under Section 55(a) and (i) of
the Abkari Act and they are sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
Rs.1,00,000/-(Rupees One lakh only) each and in
default of which they are directed to undergo rigorous
imprisonment for 3 months each for the offence under
Section 55(i) of the Abkari Act. No separate sentence
was imposed for the offence under Section 55(a) of the
CRL.A NOs. 683 & 779 OF 2006
Abkari Act. Aggrieved by the conviction and sentence,
this Criminal Appeal is filed.
5. Heard counsel appearing for the appellants
and the Public Prosecutor.
6. Counsel appearing for the appellants raised a
point that, in Ext.P8 forwarding note, there is no
specimen seal and therefore there is no guarantee that
the seized articles reached in the hands of the analyst.
The counsel relied on the judgments of this Court in
Ravi v. State - SI of Police, Meppadi [2018 (5)
KHC 352], Smithesh v. State of Kerala [2019 (2)
KLT 947] and Balachandran v. State of Kerala
[2020 (3) KHC 697]. The Public Prosecutor
submitted that there is oral documentary evidence to
show that the accused committed the offence.
7. The point to be considered in this case is
whether the accused committed the offence under
Section 55(a) and (i) of the Abkari Act. This Court
perused Ext.P8 forwarding note. From a perusal of the
CRL.A NOs. 683 & 779 OF 2006
same, it is clear that, no seal is seen in the forwarding
note. This point is considered by this Court in Ravi's
case (supra) and in Smithesh's case (supra). It
will be better to extract the relevant portion of the
judgment in Smithesh's case (supra).
"8. This Court has settled that the copy of the
forwarding note produced in court by the Detecting
officer or the Investigating Officer must be proved in
evidence, and it must contain the specimen of the
seal affixed on the sample. The Ext.P8 forwarding
note does not contain the specimen of the seal
affixed on the sample. This means that there is
nothing to identify the sample collected from the
possession of the accused. It is not known from
which plastic can, the four samples relating to the
chemical report were collected. Thus, on all material
aspects, the whole prosecution case is doubtful, and
there is no clear and satisfactory material to prove
the offence alleged."
In the light of the above judgment, the conviction
and sentence imposed on the appellants will not stand.
Therefore, these appeals are to be allowed.
Accordingly, these two Criminal Appeals are
allowed:
CRL.A NOs. 683 & 779 OF 2006
i. The conviction and sentence imposed on the
appellants as per judgment dated 16.03.2006 in S.C.
No.214/2004 on the file of the Additional Sessions
Judge (Adhoc) - II, Thodupuzha is set aside and the
appellants are set at liberty.
ii. The bail bonds, if any, executed by the
appellants are cancelled.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
