Ashok Menon, J.:— The appellant is the accused in S.C. No. 1537/2001 on the file of the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram, who was found guilty of having committed an offence punishable under Section 58 of the Abkari Act, convicted thereunder and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/-, with a default sentence of three months simple imprisonment.
2. The prosecution case in brief is thus:
On 08.03.1999 at about 6.30 p.m., PW4, who was the Sub Inspector of Police, Parassala Police Station along with PW5 and PW6 police officers, apprehended the accused, who was carrying a jerrycan containing four litres of illicit arrack. The accused was arrested and Ext. P2 mahazar was prepared in the presence of PW1 and PW2, independent witnesses. Both of them turned hostile. The sample was drawn, sealed and labelled. On reaching the Police Station, Ext. P5 F.I.R. was registered against him. The contraband was produced before the jurisdictional Magistrate together with Ext. P6 property list. On the sample being sent to the Chemical Examiner, it was found that it contained ethyl alcohol. Ext. P3 is the certificate of the Chemical Examiner.
3. On appreciation of the evidence, the accused was found guilty and convicted as stated above. Aggrieved, he is in appeal before this Court.
4. Heard Advocate Sheenamol Varghese, the learned Counsel appearing for the appellant and the learned Public Prosecutor. Records perused.
5. Advocate Sheenamol assails the impugned judgment on the ground that there is no forwarding note produced or tendered in evidence, without which it cannot be said with certainty that the very same sample which was drawn from the accused was sent for analysis to the Chemical Examiner. The Property Clerk also has not been examined to testify regarding the receipt of the samples in an untampered condition.
6. I find the argument advanced by the learned Counsel impressive and is definitely acceptable in view of plethora of decisions rendered by this Court. Absence of forwarding note is fatal to the prosecution according to this Court in Vijayan @ Pattalam Vijayan v. State of Kerala, 2018 (2) KHC 814. It is also held that an improper forwarding note is fatal to the prosecution in Kumaran v. State of Kerala, 2016 (5) KHC 832. Under the circumstances, the conviction cannot be sustained and the accused has to get the benefit.
7. In the result, the appeal is allowed and the conviction and sentence of the appellant vide the impugned judgment in S.C. No. 1537/2001 on the file of the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram, are set aside and he is set at liberty, in case he is not required in connection with any other case. The bail bonds, if any, executed by him shall stand cancelled. Fine amount, if collected, shall be reimbursed.
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