JUDGMENT
[ CRL.A.907/2005, CRL.A.963/2005 ] Dated this the 29th day of March 2021
The above two appeals have been filed by the 2ndand 1st accused respectively in SC.No.268/2002 on the file of the Court of Additional District and Sessions Judge, Fast Track (Adhoc -II), Kozhikode being aggrieved by the judgment dated 19.05.2005 whereby the appellants have been found guilty of offence under section 55(a) of the Abkari Act and have been sentenced to undergo rigorous imprisonment for two years each and to pay of fine of Rs.1 lakh each and in default of payment of fine, to undergo simple imprisonment for a further period of three months each.
2. The case of the prosecution is that on 01.09.2000 at about 22.45 hours the accused were found transporting 50 litres of illicit arrack in five cans in a Jeep No.KLM.9064. The offence was detected by CW1 and party while they were checking the vehicle. Before the Court below, on the side of the prosecution, PW1 to PW7 were examined and Exts.P1 to P18 were marked. Four cans were produced as MO1 series and marked. On the side
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of the defence, DW1 to DW3 were examined. On the basis of the evidence on record, the Court below found the accused guilty of the offence and imposed the sentence referred above.
3. Heard Shri. Anoop P.V, learned counsel for the appellant in Cr.A.No.963/2005 and Shri.P.R.Sreejith, learned counsel on behalf of the appellant in Crl.A.No.907/2005 and Shri.P.K.Babu, the learned Senior Public Prosecutor on behalf of the State.
4. Even though, several grounds have been raised in the appeal memorandum, I find that there are several infirmities in the prosecution case, which would entitle the accused to be acquitted in these cases. Ext.P5 which is the 'thondy' list produced and marked in the case would show that the same was produced before the Court on 02.09.2000 itself, which is the date of occurrence of the offence and on the same day, it is seen that the entire 'thondy' articles were returned to the Station House Officer, Kuttiyadi for interim custody. Ext.P13 which is the forwarding note produced and marked in the case, is seen to have been received in the Court only on 16.09.2000. The forwarding note does not state the name of the officer with whom the sample is to be sent for chemical examination. The
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initial of the Magistrate which is seen on Ext.P13 does not show the date on which the initial was placed. It is not discernible from Ext.P13 as to with whom the sample was forwarded for chemical examination and on which date it was forwarded. There is an endorsement in Ext.P13, without any indication as to the person who made the endorsement, indicating that the sample was forwarded on 21.10.2000. The name of the officer with whom it was forwarded is not clear. Ext.P14 which is the report of the Chemical Examiner shows that the sample was received on 21.10.2000. It is seen that there is absolutely no evidence forthcoming regarding the date on which the sample was actually dispatched, the name of the person with whom the sample which had already been entrusted to the Station House Officer on 02.09.2000, were again brought before the Court for the purpose of forwarding for chemical examination. This Court has held that the failure to write the date on which the Magistrate had initialled the forwarding note is fatal. This Court had also held that the failure to indicate the name of the officer with whom the sample is to be sent for chemical examination in the forwarding note is fatal for the prosecution case. [See
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Jayakumar v. State of Kerala (2018 KHC 3165) & Kumaran
v. State of Kerala (2016 (4) KLT 718)].
5. In the light of the settled legal position, the appellants are entitled to succeed in these appeals. The judgment dated 19.05.2005 in SC.No.268/2002 on the file of the Court of Additional District and Sessions Judge, Fast Track (Adhoc -II), Kozhikkode is set aside. The accused are acquitted and set at liberty. Bail bonds if any executed by the appellants or on their behalf are cancelled. The Court below shall direct refund of any amount deposited by the appellants for the purpose of suspension of sentence, on the appellants filing proper application before the Court below. The appeals stand allowed.
Sd/-
T.R.RAVI
JUDGE
Sn