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Sudhakaran, S/O. Damodaran, v. State of Kerala

Kerala HC1 Feb 2021CRL.A/1070/2007

Case brief

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What is this about?

Appellant appeals conviction for violating Abkari Act regarding possession of arrack. High Court set aside conviction finding specimen seal linking seized contraband to laboratory sample missing, necessitating benefit of doubt.

What did the court decide?

Judgment impugned set aside; appellant found not guilty and set at liberty; acquitted; bail bond cancelled if any; fine deposited refunded.

Sudhakaran, S/O. Damodaran, Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

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CRL.A.No.1070 OF 2007

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AGAINST THE ORDER/JUDGMENT IN SC 698/2001 OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA

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APPELLANT/ACCUSED:

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SUDHAKARAN, S/O. DAMODARAN, BHAGEERATHY VILASOM, ONAMCODE, NADOORKOLLA DESOM, NEYYATTINKARA TALUK.

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BY ADVS. SRI. R. T. PRADEEP SRI. V. VIJULAL ADV. BINUDAS M.

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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ADV. SYLAJA S.L, PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1070 OF 2007

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JUDGMENT

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Dated this the 1st day of February 2021

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The appellant challenges the conviction and sentence imposed in S.C No.698 of 2001 on the files of the Additional Session s Court for Trial of Abkari Act Cases, Neyyattinkara. The offence alleged against the appellant is punishable under

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Section 58 of the Abkari Act (for short 'the Act'). The Sessions Court found the accused guilty and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for a period of six months.

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The prosecution case was that, on 18.05.1998 at about 6 p.m while the Excise Inspector was conducting patrol duty he found the accused on a road possessing 25 litres of black jerry can. On examination, the can was found to contain 20 litres of arrack. The accused was thus apprehended and on questioning, it was found that the accused had committed the offence punishable under Section 58 of the Act.

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CRL.A.No.1070 OF 2007

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After investigation the final report was filed and on realising that the case was one triable exclusively by the court of Session, the learned Magistrate made over the case to the Sessions Court, Neyyattinkara and thereafter to the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara.

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In order to prove the prosecution case, PWs 1 to 6 were examined and Exts.P1 to P10 were marked, apart from MO1, which is the black can alleged to have been carried by the accused.

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After analysing the evidence adduced in this case the learned Sessions Judge found the accused guilty for the offence alleged and convicted him and imposed the sentence as stated earlier.

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I have heard Advocate Bindudas M. on behalf of Advocate R.T Pradeep for the appellant as well as Advocate Sylaja S.L , the l earned Public Prosecutor.

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Advocate Bindudas M., the learned counsel for the appellant in her submissions pointed out that one factor that

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CRL.A.No.1070 OF 2007

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arises in the case alone is sufficient to destroy the entire prosecution case. While buttressing the submissions relating to the above factor pointed out by her, Adv. Bindudas invited my attention to Ext.P9 forwarding note and submitted that absence of a seal in the forwarding note creates doubt on the prosecution case and the sanctity of the specimen that was sent for analysis to the chemical laboratory will stand doubtful. She referred to the decision in Smithesh V. State of Kerala [2019 (2) KLT 974] as well as recent decisions of this Court in Balachandran V. State of Kerala [2020 (4) KLT 137] and Sajeevan V. State of Kerala [2020 (6) KLT 53].

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Contradicting the arguments of the learned counsel for the appellant, Adv. Sylaja, the learned Public Prosecutor submitted that the absence of the specimen seal in the forwarding note had been considered by the learned

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Sessions Judge who referred to the seal affixed by the Magistrate Court and found that as sufficient to satisfy the requirement of the provisions.

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CRL.A.No.1070 OF 2007

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I have considered the rival submissions stated as

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above. It is no longer an issue that requires a detailed legal analysis as to whether the specimen seal must be affixed on the forwarding note. It has been repeatedly held by this Court that sample seal in the forwarding note links the seizure of the contraband and connects it to the sample taken and sent for analysis to the chemical laboratory. Absence of the specimen seal in the forwarding note creates a doubt on the prosecution version that it was the same sample taken at the time seizure from the accused, produced before the Magistrate and was thereafter sent for chemical analysis.

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In the instant case it is seen that no specimen seal was affixed on the sample that was taken at the time the contraband was seized. In the absence of specimen seal affixed at the time of sampling and thereafter at the time of preparation of the forwarding note clearly shows that the prosecution case cannot be believed in its entirety and the benefit of doubt is certainly be accorded to the accused. As rightly pointed out by the learned counsel for the appellant

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CRL.A.No.1070 OF 2007

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the aforesaid proposition is categorically laid down in the decisions reported in Smithesh's case (supra), Balachandran's case (supra) and Sajeevan's case (supra).

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Since the very edifice of the prosecution case is on shaky legs no further arguments are necessary for granting the benefit of doubt to the accused.

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In the aforesaid circumstances, the appellant is found not guilty and is to be set at liberty and the judgment impugned is set aside. Accordingly, the accused in S.C No.698 of 2001 on the files of the Additional Sessions Judge for the Trial of Abkari Act Cases, Neyyattinkara shall stand acquitted and this appeal allowed. The bail bond executed by the accused, if any, shall stand cancelled. If fine amount was deposited the same shall be refunded forthwith.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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SPR

Sudhakaran, S/O. Damodaran, v. State of Kerala

Case brief

What is this about?

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Sudhakaran, S/O. Damodaran, v. State of Kerala

Case brief

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What did the court decide?

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