Allowed

Channanapurath Pulari Shaji v. Excise Range Officer

Kerala HC8 Mar 2021CRL.A/1078/2007

Case brief

AI extract

What is this about?

In this criminal appeal, the Kerala High Court addressed a conviction under the Abkari Act where the appellant was found guilty of possessing arrack. The Court held that the prosecution failed to establish beyond reasonable doubt that the seized sample was identical to the one found during apprehension, citing gaps in the forwarding note, unclear dates, and unexplained delays in sending the sample

What did the court decide?

The judgment in SC.No.594/2002 was set aside; the accused was acquitted and set at liberty; bail bonds were cancelled.

Channanapurath Pulari Shaji Vs Excise Range Officer — Kerala HC (2021) — LawSathi Research

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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 T.R.RAVI

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MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

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CRL.A.No.1078 OF 2007

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AGAINST THE JUDGMENT IN SC.NO.594/2002 DATED 02.06.2007 OF COURT OF ADDITIOAL SESSIONS JUDGE(ADHOC)-III, THALASSERY

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APPELLANT/ACCUSED:

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CHANNANAPURATH PULARI SHAJI, S/O.LAKSHMANAN, CHADDA , MUZHAKKUNNU AMSOM, AVILAMVILAKKODE DESOM.

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BY ADV. SRI.CIBI THOMAS

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RESPONDENTS/COMPLAINANT & STATE:

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1 EXCISE RANGE OFFICER, MATTANNUR EXCISE RANGE.

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

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R1-2 BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1078 OF 2007

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JUDGMENT

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Dated this the 8^th day of March 2021

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The accused in SC.No.594/2002 on the file of the Additional

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Sessions Court, Adhoc-III, Thalassery has filed this appeal aggrieved by the judgment dated 02.06.2007 whereby the appellant was found guilty of offence under section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay of fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months.

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The case of the prosecution is that on 15.06.1998 at 4.50 p.m, the appellant was found in possession of 20 packets of Karnataka made arrack, each packets containing 100 ml, by the side of the road at Vilakkode in Muzhakunnu amsom. The prosecution produced Exts.P1 to P6 and MO1-MO3 and examined PW1 to PW4 to prove the case. On the basis of the evidence on record, the trial Court found the appellant guilty and imposed sentence as aforesaid.

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Heard. Shri.Cibi Thomas, learned counsel appearing on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the state.

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The main contention of the learned counsel for the appellant is

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CRL.A.No.1078 OF 2007

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that the prosecution has failed to establish the link between the appellant and the sample that was analyzed and found to be arrack. It is pointed out that even though the offence is said to have been detected on 15.06.1998, the forwarding note along with the sample was produced before the Magistrate only on 06.04.1999 and the forwarding note does not show as to when exactly the sample was forwarded from the Court. It is pointed out that the Magistrate who counter signed the forwarding note has not written the date when the initial was placed. This Court has held in Kumaran v. State of Kerala 2016(4)KLT 718 that the failure to write the date on which the Magistrate had initialled the forwarding note, leads to a situation where it is not possible to know how many days prior to the actual despatch the initial was placed and the actual date of despatch is also not clear. It is seen from Ext.P6 certificate of the chemical analyst that the sample was received along with a reference letter which did not bear a date and that it was received only on 13.04.1999. The delay of 7 days in the sample reaching the Chemical Examiner is not explained by examining any witnesses which is fatal for the prosecution. (See Viswanadhan v. State of Kerala 2016(3)KHC 38 ). The significance of producing and proving the forwarding note has been emphasized in several decisions of this Court. In view of the law laid down by this

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CRL.A.No.1078 OF 2007

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Court, this Court will have to find that the prosecution has failed to establish beyond reasonable doubt that the sample that was sent for chemical examination was the very same sample which had been taken at the time of detection of the crime from the possession of the appellant and that it had reached the Chemical Examiner in a tamper proof condition.

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In the above circumstances, the judgment dated 02.06.2007 in SC.No.594/2002 of the file of the Court of Additional Sessions Judge Adhoc -III, Thalassery is set aside. The accused is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf is cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Channanapurath Pulari Shaji v. Excise Range Officer

Case brief

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What did the court decide?

Channanapurath Pulari Shaji v. Excise Range Officer

Case brief

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What the court decided

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