The High Court allowed the criminal appeal, setting aside the conviction and sentence for procurement/possession of arrack. Relying on precedents, the court held the absence of a forwarding note and specimen seal fatal to proving the sample's authenticity.
Conviction and sentence quashed; accused acquitted and set at liberty; bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 17TH DAY OF DECEMBER 2015/26TH AGRAHAYANA, 1937
CRL.A.No. 276 of 2006
AGAINST THE JUDGMENT IN SC 66/2004 of ADDL.SESSIONS COURT FAST TRACK-III, THIRUVANANTHAPURAM DATED 03-01-2006
APPELLANT/ACCUUSED:
VIJAYAKUMARI, D/O.KRISHNAMMA, SOUMYA NIVAS, TC 69/2333(4), POONTHURA WARD, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.
BY ADV. SRI.D.AJITHKUMAR
RESPONDENTS/COMPLAINANT:
BY SMT. LILLY LESLIE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.276 OF 2006
Dated this the 17th day of December, 2015.
J U D G M E N T
The accused was prosecuted for the offence punishable under Sections 8(1) and (2) of Abkari Act. She was found guilty and was therefore convicted and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.1 lakh with default clause of imprisonment for three months.
14.11.1999. On that day, PWs 1 and 2, Preventive Officers of the Excise Range Office, Thiruvananthapuram along with others were on routine patrol duty. When they reached in front of Poonthura Swami Memorial Library, they happened to see the accused coming along the road carrying a can. As soon as she saw the Excise Officials, she tried to retreat. She was immediately intercepted and the can was seized. When the contents of the can was examined, it was turned out to be arrack. The can contained about 1½ litres of arrack. Arrest memo was
Crl. Appeal No.276/2006
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prepared and the accused was arrested. The can was sealed and a label containing the signature of PW1, accused and witnesses
was affixed on the same. Ext.P1 is the mahazar prepared by PW1. PWs 1 and 2 who had detected the offence and arrested the accused, brought her to the Excise Range Office where PW4 was available. He received the accused and the articles brought along with him which was seized at the time of detection. After being convinced about the details given by PW1, Crime No.120/99 was registered as per Ext.P4 occurrence report.
Crl. Appeal No.276/2006
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framed charge for the offence under Sections 8(1) and (2) of Abkari Act. To the charge, accused pleaded not guilty and claimed to be tried.
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that this appeal will have to be disposed of on a very short ground. Learned counsel pointed out that no forwarding note is seen produced before court and that means there is no specimen of sample seal made available to the court. Non production of forwarding note and non marking of sample seal is fatal to the prosecution. For the said proposition, learned counsel relied on the decisions in Majeedkutty vs. Excise Inspector (2015 (1) KLT 624) and in Krishnan vs. State (2015 (2) KLT SN 8).
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brought out in their evidence to show that they had any axe to grind against the accused or that they had any reason to falsely implicate the accused. There is nothing to show that their evidence is not trustworthy.
Crl. Appeal No.276/2006
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these materials, this Court is unable to uphold the findings of the court below.
For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below for the offence under Sections 8(1) and (2) of Abkari Act are set aside and it is held that the accused is not guilty of the offence. She stands acquitted of the charges levelled against her. Her bail bond shall stand cancelled and she is set at liberty.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
3 issues framed by the court
Whether conviction under Abkari Act sections 8(1) and 8(2) stands upheld when forwarding note with specimen seal is not produced.
Whether non-production of forwarding note containing specimen of sample seal vitiates the prosecution case.
Whether accused is to be acquitted when essential documents for authenticity of seized sample are missing.
Colour shows how this judgement treated each authority
Majeedkutty vs. Excise InspectorApplied¶38
(2015 (1) KLT 624)
Krishnan vs. StateApplied¶38
(2015 (2) KLT SN 8)
3 provisions across 2 enactments
Vijayakumari
State of Kerala
P. Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
