Allowed

Chinnan, S/O. Thankaraj v. State of Kerala

Kerala HC7 Apr 2021CRL.A/1149/2006

Case brief

AI extract

What is this about?

In this criminal appeal regarding the sale or transport of intoxicating liquor under the Abkari Act, this Court held that the absence of the specimen seal impression on the forwarding note was fatal for the prosecution. Following precedent, the Court emphasized that without this seal, the sample's condition could not be verified, leading to acquittal.

What did the court decide?

The judgment of conviction was set aside; appellants acquitted and set at liberty; bail bonds cancelled; deposited fine amounts liable for refund.

Chinnan, S/O. Thankaraj Vs State of Kerala — Corruption | 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 T.R.RAVI

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WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

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CRL.A.No.1149 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 53/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA

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AGAINST THE ORDER/JUDGMENT IN OTHERS 43/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, DEVIKULAM

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APPELLANTS/ACCUSED:

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1 CHINNAN, S/O. THANKARAJ III/42, BYSONVALLEY PLANCHAYAT, UDUMBANCHOLA TALUK.

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2 AYYAPPAN, S/O. KARUPPANNAN GOKULAM HOUSE, TEA COMPANY KARA, BYSONVALLEY VILLAGE, UDUMBANCHOLA TALUK.

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3 BABU ,S/O. PALANI, III/48 BYSONVALLEY PANCHAYAT, UDUMBANCHOLA TALUK.

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4 KUMAR, S/O. SUBBAYYA, III/43 BYSONVALLEY PANCHAYAT, UDUMBANCHOLA TALUK.

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BY ADV. SRI.P.CHANDY JOSEPH

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, DEVIKULAM RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1149 OF 2006

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JUDGMENT

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Dated this the 7th day of April 2021

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The accused 1 to 4 in S.C.No.53/2005 on the file of the Additional Sessions Court, Adhoc II, Thodupuzha have filed this appeal being aggrieved by the judgment dated 09.05.2006, whereby they have been found guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1,00,000/- each and in₹ default of payment of fine to undergo rigorous imprisonment for a further period of 3 months each.

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2. The case of the prosecution is that the appellants along with the 5^th accused were found carrying 24 litres of arrack in 240 plastic covers in a jeep through Munnar Top Station road. The offence is said to have been detected on 24.08.2000. The thondy articles were produced before the Court on 25.08.2000. Before the court below, Exts.P1 to P9 were marked and PW1 to PW7 were examined on the side of the prosecution. On the basis of the evidence on record,

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CRL.A.No.1149 OF 2006

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the Court below found the accused guilty of the offence, convicted them and imposed on them the sentence referred above.

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3. Heard Sri.P.Chandy Joseph, learned counsel on behalf of the appellants and Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the respondent.

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4. The counsel for the appellants submits that the appellants are entitled to succeed for the sole reason that Ext.P6, which is the forwarding note, which has been produced and proved in the case, does not bear the impression of the specimen seal used for sealing the sample which has been sent for chemical examination. It is further pointed out that the forwarding note does

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not show the name of the Officer with whom the sample is sent for analysis and the date on which the Magistrate countersigned is also not shown in the

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document. It leads to a situation where it is not possible to ascertain the date on which the sample was actually despatched for analysis. Along with the

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forwarding note, there is a covering letter issued by

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CRL.A.No.1149 OF 2006

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the Magistrate to the Chemical Examiner which also does not bear any date. I find considerable force in the contentions raised by the counsel for the appellants. This Court has in several decisions held that the absence of impression of the specimen seal on the forwarding note is fatal for the prosecution since there is no manner in which the Chemical Examiner or the Court could have ascertained that the sample has reached in tamper proof condition [See 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) ]

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5. It is further seen in Ext.P9, which is the report of the Chemical Examiner that the sample reached the Chemical Examiner only on 02.11.2001, much after the occurrence of the offence and the date on which the forwarding note was prepared. In the circumstances, the appellants are entitled to the benefit of doubt and are entitled to be acquitted in the case.

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6. Learned counsel for the appellants points out

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CRL.A.No.1149 OF 2006

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that the 1^st appellant is no more and his information is that, appellants 3 & 4 could not avail bail and had suffered the sentence.

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7. In the above circumstances, the appeal is

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allowed. The judgment dated 09.05.2006 in S.C.No.53/2005 on the file of the Additional Sessions Court, Adhoc II, Thodupuzha is set aside. The appellants are acquitted and set at liberty. The bail bonds, if any, executed by the appellants or on their behalf are cancelled. At the time of admission, this Court had directed the appellants to deposit a sum of ₹25,000/- each towards the fine amount. The appellants

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will be entitled to refund of the amount, if any, deposited on the basis of the directions in this appeal, on filing proper application before the court below.

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This appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Chinnan, S/O. Thankaraj v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chinnan, S/O. Thankaraj v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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