Raveendran vs State Of Kerala
2022 Latest Caselaw 7431 Ker

CRL.A NO. 2093 OF 2006                 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. 2093 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 384/2002 OF SPECIAL COURT FOR
                         ABKARI ACT CASES, KOTTARAKKARA
CP 104/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR
APPELLANT/S:

               RAVEENDRAN
               S/O.SREEDHARAN, SUNIL BHAVANAM VEEDU, CHEMBRAMAN,
               PUTHALA VILLAGE, PATHANAPURAM, KOLLAM DISTRICT.

               BY ADV RAVEENDRAN (PARTY)



RESPONDENT/S:

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

               BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

               SMT.DEEPA NARAYANAN, SR.GP


       THIS     CRIMINAL     APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2093 OF 2006               2




                        P.V.KUNHIKRISHNAN, J
                  --------------------------------------------
                     Crl.Appeal No. 2093 of 2006
                     --------------------------------------
                 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

29.9.2006 in SC No. 384/2002 on the file of the Addl. Sessions

Judge (Abkari) Kottarakkara. The above case is chargesheeted

against the appellant alleging offences punishable under Secs.

55(a) and (i) of the Abkari Act.

2. The prosecution case in brief is as follows :

On 24.9.1999 at 6 p.m., the accused was found in

possession and engaged in the sale of 2 litres of arrack in a 5

litre black jerry can with a drinking glass by standing beneath

the pepper wine in the rubber plantation owned by Salim at

Chempraman which was detected by CW5, the Sub Inspector

of Police, Pathanapuram and his party. CW5 has seized the

contraband articles, arrested the accused, registered Crime

No. 307/1999 of Pathanapuram Police Station, conducted the

investigation and laid the charge.

3. To substantiate the case, the prosecution examined

PW1 to PW3. Exhibits P1 to P5 are the exhibits. MO1 and MO2

are the material objects. After going through the evidence and

documents, the trial court found that the accused committed

the offences under Sec.55(a) of the Abkari Act. He was

acquitted under Sec.55(i) of the Abkari Act. He was sentenced

to undergo simple imprisonment of one year and to pay a fine

of Rs.1,00,000/- (One Lakh only). In default of payment of fine,

the accused is directed to undergo simple imprisonment for

three more months. Aggrieved by the conviction and sentence,

this Criminal Appeal is filed.

4. Heard.

5. The short point raised in this appeal is that the

forwarding note is not marked in this case. The forwarding

note is an important document, which is to be marked in

Abkari cases. 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 29.09.2006 in S.C. No.

384/2002 on the file of the Addl.Sessions Judge (Abkari)

Kottarakkara is set aside and the appellant is set at liberty.

7. The bail bonds, if any, executed by the appellant, are

cancelled.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS