Kerala High Court
Rajesh vs State Of Kerala on 29 May, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 2972 of 2005
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
CRL.REV.PET NO. 2972 OF 2005
AGAINST THE JUDGMENT DATED 03.06.2005 IN Crl.A NO.30 OF 2002
OF IIND ADDITIONAL SESSIONS COURT, KOZHIKODE ARISING OUT OF
THE JUDGMENT DATED 20.12.2001 IN SC NO.148 OF 2001 OF IST
ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED:
RAJESH
S/O.BALAKRISHNAN, AGED 22 YEARS,
EDAKKAPRATH TAZHATH,
CHELANNUR VILLAGE,
KANNANKARA DESOM,
KOZHIKODE TALUK.
BY ADV SHRI.SUNNY MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
EXCISE INSPECTOR, CHELANNUR,
REPRESENTED, BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.E.C.BINEESH-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 29.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet.No. 2972 of 2005
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ORDER
This Criminal Revision Petition is directed against the
judgment dated 03.06.2005 in Crl.Appeal.No. 30 of 2002 on the
files of the IInd Additional Sessions Court, Kozhikode (for short, 'the
appellate court') confirming the judgment dated 20.12.2001 in
S.C.No. 148 of 2001 on the files of the I st Additional Assistant
Sessions Court, Kozhikode (for short, 'the trial court').
2. The revision petitioner is the accused. He faced trial for
the offence punishable under Section 55(a) of the Kerala Abkari
Act, 1997.
3. The prosecution case in short is that, five litres of arrack
was seized from the petitioner on 23.01.1998 at about 10.30 p.m.,
at Kannankara while he was transporting the same in a jerrycan
through the bank of the canal which ran to Akalapuzha, in
contravention of the Kerala Abkari Act and Rules and thereby
committed the offence.
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4. On receipt of summons, the accused appeared at the
trial court. After hearing both sides, charge under Section 55(a) of
the Kerala Abkari Act has been framed against the accused. The
charge was read over and explained to the accused who pleaded
not guilty.
5. The prosecution examined PW1 to PW5 and marked
Exts.P1 to P7. MO1 was identified. No defence evidence was
adduced. Considering the evidence on record, the trial court found
the accused guilty under Section 55(a) of the Abkari Act and he
was convicted for the said offence. He was sentenced to undergo
simple imprisonment for one year and to pay a fine of
Rs.1,00,000/-(Rupees one lakh only), in default, to suffer simple
imprisonment for six months more. The appellate court in appeal
confirmed the conviction and sentence passed by the trial court.
Challenging the judgments of the trial court as well as the
appellate court, the petitioner preferred this revision petition.
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6. I have heard both sides.
7. The learned counsel for the petitioner assailed the
finding of guilt passed by the trial court as well as the appellate
court against the petitioner as illegal and unsustainable mainly on
two grounds.
(i) The forwarding note is not produced.
(ii) The mahazar does not contain sample seal or its
description.
8. The learned Public Prosecutor, on the other hand,
supported the findings and verdict of the trial court as well as the
appellate court and submitted that the prosecution has succeeded
in proving the case beyond reasonable doubt.
9. The main contention canvassed by the learned counsel
for the 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
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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.
10. The next point canvassed by the learned counsel is
regarding the absence of sample seal in the mahazar. This Court in
Bhaskaran v. State of Kerala (2020(5) KLT OnLine 1057) has
held that the specimen seal shall be provided in the seizure
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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.
11. The aforesaid vital aspect was not taken into
consideration by the trial court and the appellate court while
appreciating the prosecution case. For the reason stated above, I
am of the view that the conviction and sentence passed by the trial
court and the appellate court suffer from illegality and it cannot be
sustained.
12. Hence, the conviction and sentence passed by the trial
court as well as the appellate court vide the impugned judgments
cannot be sustained and accordingly they are set aside. The
revision petitioner is found not guilty of the offence charged
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against him and accordingly he is acquitted. His bail bond is
cancelled.
The criminal revision petition stands allowed as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
