Kerala High Court
Soman vs State Of Kerala on 2 November, 2024
Crl. R.P 88/2017
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2024:KER:81441
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA, 1946
CRL.REV.PET NO.88 OF 2017
AGAINST THE JUDGMENT DATED 21.12.2016 IN CRA NO.166 OF
2014 OF SESSIONS COURT, PALAKKAD ARISING OUT OF THE JUDGMENT
DATED 31.03.2014 IN SC NO.425 OF 2011 OF ASSISTANT SESSIONS
COURT, OTTAPPALAM
REVISION PETITIONER/APPELLANT/ACCUSED:
SOMAN
AGED 61 YEARS, S/O. RAGHAVAN,
MOOLAMPUZHA VEEDU, PADAMUGHAM (P.O),
IDUKKI DISTRICT.
BY ADV SRI.NIREESH MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031.
SMT. MAYA M.N, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 29.10.2024, THE COURT ON 02.11.2024 DELIVERED THE
FOLLOWING:
Crl. R.P 88/2017
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2024:KER:81441
ORDER
Dated this the 2nd day of November, 2024
This Criminal Revision Petition has been preferred by the appellant in
Criminal Appeal No.166 of 2014 on the file of the Court of Session, Palakkad
against the judgment dated 21.12.2016 confirming the judgment of the
Assistant Sessions Judge, Ottapalam in SC. No.425 of 2011 finding him
guilty under Section 55(a) of the Abkari Act and convicting and sentencing
him to undergo rigorous imprisonment for two years and to pay fine of
Rs.1,00,000/-.
2. The prosecution case is that on 6.1.2011 at around 1 a.m., the
accused was found in possession of a bag containing 108 bottles of Indian
Made Foreign Liquor, each containing 750 ml of different types, permitted to
be sold only in Goa and kept for illicit sale near the KSRTC Bus stand,
Pattambi.
3. The evidence in this case consists of the oral testimonies of PWs1 to
5 and Exhibit P1 to P8. MOs 1 to 4 were also identified. No evidence was
adduced by the accused. After evaluating the available evidence, the trial
court found the accused guilty under Section 55(a) Abkari Act, which was
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confirmed in appeal by the Sessions Court, Palakkad. Aggrieved by the
above judgment of the Appellate Court, he preferred this revision petition
raising various grounds.
4. Now, the point that arise for consideration is the following:
1) Whether the impugned judgment of conviction passed
against the revision petitioner as confirmed by the Appellate
Court is liable to be interfered with, in the light of the grounds
raised in the revision petition?
5. Heard both sides.
6. The point:- Sri.Nireesh Mathew, the learned counsel for the revision
petitioner mainly relied upon the absence of specimen impression of the
sample seal in Exhibit P1 seizure Mahazar as well as in Exhibit P7
forwarding note. Relying upon the decisions of this Court in Crl. Appeal
No.2098/2007 dated 20.5.2022 and in Crl. Appeal No.1807/2007 dated
28.11.2023, he would argue that the absence of sample seal in seizure
mahazar as well as forwarding note is fatal to the prosecution case.
7. On a perusal of Exhibit P1 seizure mahazar and Exhibit P7
forwarding note, it can be seen that the specimen impression of sample seal
was not affixed either in the seizure mahazar or in the forwarding note.
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8. This Court, in several decisions, held that the forwarding note
produced in the court is to be proved in evidence and it must contain the
specimen of the seal affixed on the sample. In the absence of any such
specimen seal in the forwarding note, it cannot be ensured that the sample
collected from the accused is the one reached the Chemical Examiner's
Laboratory (Balachandran v. State of Kerala, 2020 (4) KLT 237).
9. In the decision in Moothedath Sivadasan v. State of Kerala, [2021
(1) KLT 744], a Single Bench of this Court dealt with a case wherein no
specimen impression was affixed on seizure mahazar and specimen
impression of the seal was not produced and exhibited in the case. In
paragraph 12, the court observed as follows:
"No specimen impression of seal is seen affixed on Ext.P1 seizure
mahazar prepared by PW4. Further specimen impression of sample
seal was not produced as an Exhibit in this case. Under the
circumstances, it is very difficult to hold that the sample of the
contraband allegedly seized from the accused has, in fact, reached
the chemical examiner for analysis."
10. In the instant case also, the specimen seal affixed on the sample
was not affixed in Exhibit P1 seizure mahazar and Exhibit P7 forwarding
note. The specimen seal was also not produced as an exhibit in the case. In
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the above circumstances, there is no guarantee that the sample taken from the
accused was the one which reached the chemical examiner for analysis. In
the above circumstances, on that sole ground itself, the accused is entitled to
get an order of acquittal. Point answered accordingly.
11. In the result, the revision petition is allowed. The impugned
judgment of conviction passed against the accused by the Assistant Sessions
Judge in SC. No.425 of 2011 as confirmed by Sessions Judge, Palakkad in
Crl. Appeal No.166 of 2014 is set aside. The accused is acquitted under
Section 386 (b)(i) Cr.P.C. He is set at liberty cancelling the bail bond.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
