CRL.A.No.2007 OF 2006(C) 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943 CRL.A.No.2007 OF 2006(C)
AGAINST THE JUDGMENT IN SC 141/2004 DATED 04-10-2006 OF ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-I),
THIRUVANANTHAPURAM
CP 43/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL APPELLANT/ACCUSED:
SURESH LAL
S/O.MANI, LAL MANDIRAM,
VATTALIL, ADAYAMON P.O., PAZHAYAKUNNUMEL VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DIST.
BY ADVS.
SRI. K.SIJU
SRI.S.SUDHEESHKAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY EXCISE INSPECTOR, CHIRAYINKEEZHU,
EXCISE RANGE THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.P.K BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 29th day of March, 2021
The accused in S.C.No.141/2004 on the file of the Additional District and Sessions Court, (Fast Track Court-I), Thiruvananthapuram, has filed this appeal being aggrieved by the judgment dated 04.10.2006 whereby he has been found guilty of offence under Sections 55(a), 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000 (rupees One Lakh only) and in default of payment fine to undergo rigorous imprisonment for six months.
2. The case of the prosecution is that on 01.07.2002 at
2.45 p.m., the accused was found in possession of 4.5 litres of Indian Made Foreign Liquor and 5 litres of arrack, which has been transported in a Vespa Scooter bearing registration No.KRQ.9855.
3. Before the court below the prosecution examined PW1 to PW4 and Exts.P1 to P8 were marked. On the basis of the evidence on record, the court below found the accused guilty and imposed on him the sentence referred above.
4. Heard Sri Siju Kamalasanan, learned counsel on behalf
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of the appellant and Sri P.K.Babu, learned Senior Public Prosecutor on behalf of the respondent State.
5. The main contention raised by the learned counsel for the appellant is that the forwarding note which has been produced as Ext.P6 does not bear the impression of the specimen seal used for sealing the sample sent for chemical analysis. It is submitted that for that sole reason, the accused is entitled to be acquitted.
6. I find considerable force in the contention raised by the learned counsel for the appellant. Ext.P5 is the thondi list produced before the Court, which has been produced on 02.07.2002, the next day after the date of offence. The forwarding note which is produced as Ext.P6 appears to have been prepared on 01.07.2002. The forwarding note does not contain the impression of the specimen seal used for sealing the sample which was sent for chemical analysis. The space where the name of the Excise Guard with whom the sample was sent for examination is left blank. The initial of the Magistrate does not indicate the date on which the initial was put. A covering letter has been attached to the forwarding note. The letter which is dated 03.09.2002 has been written by the Magistrate and addressed to the Chemical Examiner. The said letter also does not
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contain any impression of the specimen seal. In short, the specimen seal was not sent to the Examiner for counter checking the seal on the sample that he had received for analysis. Ext.P7, which is the report of the Chemical Examiner shows that the sample was received on 03.09.2002. It has been held by this Court in 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) that failure to place the impression of the specimen seal used for sealing the sample, on the forwarding note, is fatal for the prosecution and in such circumstances, it is not possible to hold that the prosecution had proved beyond any reasonable doubt that the very same sample which was taken at the place of occurrence had reached the Chemical Examiner for analysis in tamper proof condition.
7. So also this Court has held that the failure to state the name of the Officer with whom the sample is to be sent for chemical analysis and the failure to write the date on which the Magistrate has countersigned the forwarding note are also fatal for the prosecution case. [See Jayakumar v. State of Kerala (2018 KHC 3165) and Kumaran v. State of Kerala (2016 (4)
KLT 718)]
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8. In the light of the settled legal position and on the facts of the case, the appellant is entitled to succeed. The judgment dated 04.10.2006 in SC.No.141/2004 on the file of the Additional District and Sessions Court, (Fast Track Court-I), Thiruvananthapuram is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled.
9. On 20.10.2006, this Court had directed the appellant to deposit a sum of Rs.10,000/- out of the fine amount before the trial court. The appellant will be entitled to get refund of the said amount, on making proper application before the trial court. The appeal stands allowed.
Sd/-
T.R.RAVI, JUDGE
dsn
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