Kerala High Court
Biju vs State Of Kerala on 24 June, 2022
CRL.A NO. 2407 OF 2007 1
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. 2407 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 758/2005 OF ADDITIONAL
DISTRICT COURT (ADHOC)-II, ALAPPUZHA
APPELLANT/S:
BIJU S/O ANANDAN,
BINU BHAVANAM, MUTHUKULAM VADAKKUM MURI,,
ARATTUPUZHA VILLAGE, KARTHIKAPPALLY.
BY ADV SMT.A.SALINI LAL
RESPONDENT/S:
STATE OF KERALA
EXCISE INSPECTOR, KAYAMKULAM, THROUGH THE, PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
OTHER PRESENT:
SMT.VIDYA KURIAKOSE, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2407 OF 2007 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No.2407 of 2007
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Dated this the 24th day of June, 2022
JUDGMENT
This Criminal Appeal is filed against the conviction and
sentence imposed on the appellant as per the judgment dated
29.11.2006 in SC No. 758/2005 on the file of the Addl.Sessions
Judge, Fast Track-II, Alappuzha. The above case is
chargesheeted against the appellant alleging offences
punishable under Secs. 8(1) & (2) of the Abkari Act.
2. The case against the accused in short is that on
2.9.2003 at 8.30 am, he was found possessing arrack in MO1
kannas at the place of occurrence on the panchayat road in
front of the house of one Uthaman of Vinod Bhavanam in
Muthukulam North muri in Muthukulam Panchayat and
thereby committed the offences as alleged against him.
3. To substantiate the case, the prosecution examined
PW1 to PW5. Exts.P1 to P7 are the exhibits. MO1 is the
material object. After going through the evidence and
documents, the trial court found that the accused committed
the offences under Secs. 8(1) and (2) of the Abkari Act. He was
sentenced to undergo simple imprisonment for a period of one
year and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only).
In default of payment of fine, the accused is directed to
undergo simple imprisonment for a period of two months.
Aggrieved by the conviction and sentence, this Criminal
Appeal is filed.
4. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
5. The short point raised by the appellant is that
no forwarding note is marked in this case. The forwarding
note is an important document, which is to be marked in
Abkari cases. If the same is not produced, that itself will
collapse the entire prosecution case. The importance of
forwarding note is considered by this Court in
several judgments. In Prakashan and anr. v. State of Kerala
[2016 KHC 96], Vijayan @ Pattalam Vijayan and anr. v.
State of Kerala [2018 (2) KLT 814], Gireesh @ Manoj v.
State of Kerala [2019 (4) KLT 79] and Balachandaran v.
State of Kerala [2020 (3) KHC 697], this point is considered
in detail. It will be beneficial to extract the relevant portion of
the judgment in Gireesh's case (supra).
"14. There is another lacuna in the prosecution case. The copy
of the forwarding note prepared by PW5 for sending the samples
for chemical analysis was not marked in evidence. The
forwarding note is expected to contain the specimen impression
of the seal used for sealing the bottles containing the samples. 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 samples taken at the spot
of the occurrence had reached the chemical examiner for
analysis in a tamper proof condition (See Prakasan v. State of
Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 :
2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC
541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))."
6. In the light of the above dictum, I think the
appellant is entitled the benefit of doubt. Therefore, this
Criminal Appeal is allowed. The conviction and sentence
imposed on the appellant as per the judgment dated
29.11.2007 in S.C. No. 758/2005 on the file of the
Addl.Sessions Judge, Fast Track-II, Alappuzha is set aside and
the appellant is set at liberty.
The bail bonds, if any, executed by the appellant, are
cancelled.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
