Kerala High Court
Vinod vs State Of Kerala on 12 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.947/2013
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2025:KER:41557
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
CRL.REV.PET NO. 947 OF 2013
AGAINST THE JUDGMENT DATED 31.05.2012 IN Crl.A NO.561
OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-IV,
THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED
10.12.2009 IN SC NO.2342 OF 2004 OF ASSISTANT SESSIONS COURT,
NEDUMANGAD
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
VINOD, S/O SURENDRAN, VINOD NIVAS, ANANDESWARAM,
KOTAKKAKOM MURI, ARYANADU VILLAGE
BY ADV SRI.NIREESH MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 12.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.947/2013
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ORDER
This criminal revision petition has been filed challenging
the judgment in Crl.A.No.561/2010 dated 31.05.2012 on the files
of the Additional District and Sessions Court, Fast Track (Adhoc)
Court No.IV Thiruvananthapuram (for short "the appellate court")
confirming the judgment in S.C.No.2342/2004 dated 10.12.2009
on the files of the Assistant Sessions Court, Nedumangad (for
short "the trial court").
2. The prosecution case in short is that on
2.12.2002 at 4 am, the petitioner along with other accused were
found transporting 134 litres of arrack in a jeep bearing
registration No.KL 01-W 4163 along the road lying at Aryanad Post
Office junction in contravention of the offence punishable under
Section 8(1) & (2) of the Abkari Act.
3. On receipt of summons, the petitioner appeared
at the trial court. After hearing both sides, charge was framed
under Section 8 (1) & (2) of the Abkari Act. The charge was read
over and explained to him and he pleaded not guilty. The
prosecution examined PW1 to PW6 and marked Exts.P1 to P6.
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MO1 to MO4 were identified. On the side of the defence, none was
examined. Ext.D1 was marked on the side of the defence
Considering the evidence on record, the trial court found the
petitioner guilty under Section 8 (1) & (2) of the Abkari Act and
convicted him for the said offence. He was sentenced to undergo
rigorous imprisonment for 2 years and to pay a fine of ₹1,00,000/-
(Rupees one lakh), in default to suffer rigorous imprisonment for 6
months. The appellate court in appeal, allowed the appeal in part
modifying the sentence. The petitioner was sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
₹1,00,000/-, in default to suffer simple imprisonment for six
months. The conviction and sentence passed by both the trial
court as well as the appellate court are under challenge in this
revision petition.
4. I have heard Sri. Nireesh Mathew, the learned
counsel for the revision petitioner as well as Sri. Sangeetha Raj
N.R., the learned Public Prosecutor.
5. The learned counsel appearing for the revision
petitioner assailed the conviction and sentence passed by the trial
court as well as the appellate court on two grounds.
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(1) The forwarding note is not produced. (2) The mahazar does
not contain sample seal.
6. The main contention canvassed by the learned
counsel for the revision petitioner is regarding the non production
of the forwarding note. The learned counsel submitted that 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. 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 note is fatal to the
prosecution.
7. The next point canvassed by the learned counsel
is regarding the absence of sample seal in the mahazar. This Court
in K.Bhaskaran v. State of Kerala (2020(5) KLT OnLine 1057)
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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. A perusal of
Ext.P1 mahazar would show that it does not contain the sample
seal or the description of the seal used.
8. The aforesaid vital aspects were not taken into
consideration by the trial court as well as the appellate court while
appreciating the prosecution case. For the reasons stated above, I
am of the view that the conviction and sentence passed by the trial
court as well as the appellate court suffer from illegality and it
cannot be sustained.
In the result, the criminal revision petition stands allowed.
The conviction and sentence passed by the trial court as well as
the appellate court vide the impugned judgments are set aside.
The revision petitioner is found not guilty of the offences charged
against him and accordingly he is acquitted. His bail bond is
cancelled.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
