Allowed

Kumaresan, S/O. Titus, v. State of Kerala

Kerala HC7 Apr 2021CRL.A/1195/2007

Case brief

AI extract

What is this about?

This criminal appeal challenges a conviction under Section 58 of the Abkari Act for arrack possession. The High Court acquitted the appellant due to deficiencies in the forwarding note and sealing process of the sample sent for chemical examination, concluding the evidence was insufficient.

What did the court decide?

The impugned judgment dated 07.05.2001 is set aside; the appellant is acquitted and set at liberty; bail bonds are cancelled.

Kumaresan, S/O. Titus, Vs State of Kerala — Cheque Dishonour | 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.1195 OF 2007

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AGAINST THE JUDGMENT IN SC.No.720/2001 DATED 07-05-2007 OF THE COURT OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA

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CP.NO.218/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEYYATTINKARA

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APPELLANT/ACCUSED:

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KUMARESAN, S/O. TITUS, VATTAVILA VEEDU, PIRAVILAKOM, VIZHINJAM VILLAGE.

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BY ADV. SRI.S.MOHAMMED AL RAFI

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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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BY SMT. S.L .SYLAJA, PUBLIC PROSECUTOR

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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.1195 OF 2007

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JUDGMENT

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Dated this the 7^th day of April 2021

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The accused in SC.No.720/2001 on the file of the Court of
Additional Sessions Judge for the trial of Abkari Act Cases,
Neyyattinkara has filed this appeal being aggrieved by the judgment
dated 07.05.2007 whereby he was found guilty of offence under
sections 58 of the Abkari Act and convicted and sentenced to undergo
rigorous imprisonment for one year and to pay a 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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2. The case of the prosecution is that the the Sub Inspector of
Police, Vizhinjam Police Station on 11.02.2000 received information
that arrack is being sold by the accused and on reaching the scene of
occurrence, the accused was found under a tamarind tree in the
garden land engaged in the sale of arrack and in possession of 5 litre
capacity can which contained 3 litres of arrack. According to the
prosecution, the 'thondy' articles were seized and the accused was
arrested. The 'thondy' articles were produced before the Court on the
next day. Before the court below, the prosecution examined PW1 to
PW5 and Exts.P1 to P9 were marked. On the basis of the evidence on
record, the Court below found the appellant guilty of the offence,
convicted him and imposed the sentence referred above.

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CRL.A.No.1195 OF 2007

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3. Heard Shri. S.Muhammed Al Rafi, learned counsel on behalf
of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf
of the State.

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4. The counsel for the appellant submits that Ext.P8 forwarding
note produced and marked in the case does not bear the impression
of the specimen seal used for sealing the sample which was
forwarded for Chemical Examination. It is further pointed out that the
forwarding note does not show the name of the Excise Guard with
whom the sample is to be sent for analysis and the date of actual
dispatch of the sample is also not clear from the forwarding note. It is
further pointed out that even though the 'thondy' clerk was examined
as PW5, he did not make any mention about the date on which the
sample was taken. Proceedings of the Magistrate directing the taking
of the sample by the 'thondy' clerk is also not produced in the case. I
find considerable force in the contentions raised by the counsel for
the appellant.

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5. On a perusal of Ext.P8, it is seen that it does not bear the
impression of the specimen seal and it does not contain the name of
the Excise Guard with whom the sample is to be sent for analysis. It is
stated in the forwarding note that 250 ml of arrack collected from the
material object as sample was sent for Chemical Examination. The
document does not say anything about sealing the sample and states

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CRL.A.No.1195 OF 2007

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that the label of the Court has been affixed on the sample. Ext.P7
produced in the case is the sample seal of the Magistrate. The
relevancy of the court seal is not at all clear since the entire 'thondy'
articles were remaining with the Police Station after it was returned
from the Court for safe custody. The manner in which the sample was
taken and was sealed, the persons who were present during the
taking of the sample, the proceedings based on which the sample was
taken by the 'thondy' clerk are all matters which are left to one's
imagination. The evidence that is available on record is not suffcienti
to hold that the representative sample of the contraband articles had
reached the Chemical Examiner in a tamper proof condition. The
appellant is entitled to the benefit of doubt.

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6. In the result, the judgment dated 07.05.2007 in
SC.No.720/2001 on the file of the Court of Additional Sessions Judge
for the trial of Abkari Act Cases, Neyyattinkara is set aside. The
appellant is acquitted and set at liberty. Bail bonds if any executed by
the appellant or on his behalf are cancelled.

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The appeal stands allowed.

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Sd/-

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T.R.RAVI

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JUDGE

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Sn

Kumaresan, S/O. Titus, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kumaresan, S/O. Titus, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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