Kerala High Court
Rajan vs State Of Kerala on 18 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.463/2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
CRL.REV.PET NO. 463 OF 2010
AGAINST THE JUDGMENT DATED 09.10.2009 IN Crl.A
NO.445 OF 2008 OF SESSIONS COURT, THIRUVANANTHAPURAM
ARISING OUT OF THE JUDGMENT DATED 11.04.2008 IN SC NO.1798
OF 2004 OF ASSISTANT SESSIONS COURT,NEYYATTINKARA
REVISION PETITIONER/APPELLANT/ACCUSED:
RAJAN, S/O THANKAPPAN, KARUMAM VALLIMURAMBIL
VEEDU,, MANUKULADICHAMANGALAM, NEMOM-
THIRUVANANTHAPURAM.
BY ADVS. SRI.R.BINDU (SASTHAMANGALAM)
SRI.R.JAYAKRISHNAN
RESPONDENT/RESPONDENT/COMPLAINANT:
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 18.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.463/2010
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ORDER
This criminal revision petition has been filed
challenging the judgment in Crl.A.No.445/2008 dated
9.10.2009 on the files of the Sessions Court,
Thiruvananthapuram (for short "the appellate court")
confirming the judgment in S.C.No.1798/2004 dated 11.4.2008
on the files of the Assistant Sessions Court, Neyyattinkara (for
short "the trial court").
2. The prosecution case in short is that on
3.5.2000 at 1 pm, the petitioner was found in possession of 1
½ litres of arrack in a can of two litres capacity in front of the
house of one Sekharan at Marukulathichamangalam Desom in
contravention of 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 PW7 and marked
Exts.P1 to P5. MO1 was identified. On the side of the defence,
no evidence was adduced. Considering the evidence on record,
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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 3
years and to pay a fine of ₹1,00,000/-(Rupees one lakh), in
default to suffer simple imprisonment for three months. The
appellate court in appeal, confirmed the findings of the trial
court and dismissed the appeal. 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.R. Bindu Sasthamangalam,
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 three grounds.
(1) The forwarding note is not produced. (2) The mahazar
does not contain sample seal and (3) No sample was drawn
from the site. On the other hand, the sample was drawn by the
Thondy Clerk of the Court, which is impermissible under law.
6. The first contention canvassed by the learned
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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 second 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) has held that the specimen seal
shall be provided in the seizure mahazar and also in the
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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. In respect of the last point canvassed by the
learned counsel, the evidence on record would show that no
sample was drawn at the spot. On the other hand the sample
was drawn by PW7, the Thondy Clerk, when it reached the
court. This Court in Baburaj v. State of Kerala (2021 (6)
KHC 92) held that the Magistrate is not empowered to draw
sample from the contraband produced before him by the
detecting officer.
9. 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
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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
