T.R. Ravi, J.:— The 1 accused in S.C. No. 672/2004 on the file of the Additional District & Sessions Court, Adhoc III, Kollam has filed this appeal being aggrieved by the judgment dated 13.12.2006, whereby he has been found guilty of offences under Section 55(a)&(i) of the Abkari Act and sentenced to undergo simple imprisonment for a period of 5 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for a further period of 6 months.
2. The case of the prosecution is that on 18.07.2001 at 4.30 p.m., the Excise party led by the Excise Inspector, Kunnathoor Excise Circle Office found accused 1 & 2 in possession of 50 litres of spirit in two white plastic cans of 35 litres capacity and 480 litres of wash in 16 white cans of 35 litre capacity. Before the court below the prosecution examined PW1 to PW5 and Exts.P1 to P10 were marked. On the basis of the evidence on record, the court below found the 1 accused guilty of the offences and imposed on him the sentence referred above. The 2 accused was acquitted.
3. Heard Sri. B. Mohanlal, learned counsel on behalf of the appellant and Smt. Sylaja, learned Public Prosecutor on behalf of the State.
4. The main contention of the counsel for the appellant is that even though the prosecution has produced and marked the forwarding note as Ext.P9, the forwarding note does not contain the impression of the specimen seal used for sealing the sample, which was sent for chemical analysis and the name of the officer with whom the sample was sent for chemical examination.
5. I find considerable force in the contention raised by the counsel for the appellant. On a perusal of Ext.P9 forwarding note, I find that the impression of the specimen seal has not been put in the forwarding note. So also, the space for writing the name of the Excise Guard has been left blank. The document is seen to have been prepared by the Excise Inspector on 19.07.2001. Even though the Magistrate has countersigned the document, no date is written below the signature of the Magistrate to indicate the date on which the sample was actually sent for chemical analysis. Ext.P10, which is the report of the Chemical Examiner shows that the sample was received only on 13.08.2001, almost one month after the date of the forwarding note. There is no explanation forthcoming as to the safe custody of the sample between the date of the forwarding note and the date on which the sample reached the Chemical Examiner. There is nothing on record to indicate the date of actual despatch of the sample to the Chemical Examiner. This Court has held in several decisions that the failure to affix the impression of the specimen seal used for sealing the sample sent for chemical analysis is fatal for the prosecution. [see Ravi v. State of Kerala, (2018 (5) KHC 352), Balachandran v. State of Kerala, (2020 (3) KHC 697) & Smithesh v. State Of Kerala, ((2019) 2 KLT 974)].
6. In P. Kumaran v. State Of Kerala [(2016) 4 KLT 718] this Court held that the failure to write the date on which the Magistrate had initialled the forwarding note is fatal for the prosecution, since it is not possible to know the exact date on which the sample was despatched to the Chemical Examiner. The failure to state the name of the Officer with whom the sample is to be sent for chemical examination is also fatal for the prosecution. [See Jayakumar v. State of Kerala, (2018 KHC 3165)].
7. In the light of the above settled legal position, the appellant is entitled to succeed in this appeal. In the result, the judgment dated 13.12.2006 in S.C. No. 672/2004 on the file of the Additional District & Sessions Court, Adhoc III, Kollam is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled.
8. This appeal stands allowed.
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