Allowed

Biju, S/O. Bhaskaran Nair, v. State of Kerala

Kerala HC1 Mar 2021CRL.A/1489/2006

Case brief

AI extract

What is this about?

Kerala High Court allowed criminal appeal against conviction under Section 8(2) of the Abkari Act. The court set aside the conviction and acquitted the appellant, finding a serious flaw in the prosecution case because the forwarding note linking contraband arack to the analyzed sample was not marked in evidence, relying on precedents requiring such proof.

What did the court decide?

Judgment dated 18.07.2006 set aside; appellant acquitted and set at liberty; bail bond cancelled.

Biju, S/O. Bhaskaran Nair, 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 T.R.RAVI

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MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

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CRL.A.No.1489 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 582/2003 DATED 18-07-2006 OF ADDITIONAL DISTRICT & SESSIONS (AD-HOC) COURT – I, PATHANAMTHITTA

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AGAINST THE ORDER/JUDGMENT IN CP NO.40/2003 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT -II,PATHANAMTHITTA

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APPELLANT/ACCUSED:

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BIJU, S/O. BHASKARAN NAIR, PLAVARA VEEDU, THAZHAM MURI, MALAYALAPUZHA VILLAGE, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1489 OF 2006

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JUDGMENT

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Dated this the 1st day of March 2021

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The accused in SC.No.582/2003 on the files of the Additional District and Sessions (Adhoc) Court – I, Pathanamthitta has filed this appeal, aggrieved by the order of the Court below finding him guilty of offence punishable under Section 8(2) of the Abkari Act and sentencing him 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 one more year.

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The case of the prosecution is that on 24.05.2001 at about 5.00 p.m, the appellant was found to be in possession of 20 litres of arrack kept in plastic containers and being transported in an autorikshaw bearing No.KL/3D-153 driven by the first accused. The appellant was stated to be seated in the passenger cabin. The Excise Officials on suspicion arrested the accused and the contraband was taken into custody. The case was registerd as Crime No.7/2001 by the Excise Inspector, Konni Excise Range alleging offences punishable under Section 8(1), 55 (a) and 67 (B)(i) of Abkari Act have been committed. After investigation, the charge sheet was filed before the Judicial First Class Magistrate Court, Pattanamthitta and the case was

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CRL.A.No.1489 OF 2006

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numbered as C.P.No.40/2003. The Magistrate committed the case to the Session Court. The Principal Sessions Court took cognizance of the offence and the case was numbered as SC.No.582/2003 and later made over to the Additional Sessions Court.

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The case against the 1^st accused abated on account of his death on 25.08.2004. The Sessions Court convicted the accused and imposed the sentence referred above. Aggrieved by the judgment and sentence imposed on him, the appellant is before this Court.

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Even though several contentions have been taken in the memorandum of appeal, on going through the records of the case and the impugned judgment, I find that there is a serious flaw in the prosecution case. The primary document which links the contraband articles and the sample th at has been analyzed by the chemical analyst, which is the forwarding note, has not been marked in evidence on the side of the prosecution. The necessity of marking and proving the forwarding note containing the specimen seal on the sample affixed to it has been emphasized in several judgments of this Court and it has been held that the failure to prove the forwarding note is sufficient to acquit the accused. [See the decisions in Unnikrishnan Nair v. State of Kerala reported in ( 2020 (3) KHC 455) and Sadasivan @ Para v. State of Kerala reported in ( 2020

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CRL.A.No.1489 OF 2006

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KHC 478)] .

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In the light of the law laid down by this Court, I find that on the facts of this case, the appellant is entitled to be acquitted of the offence. The judgment dated 18.07.2006 in SC.No.582/2003 of the Additional District and Sessions (Adhoc) IV, Pathanamthitta is set aside. The appellant is acquitted and set at liberty. Bail bond if any executed by the appellant is cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Biju, S/O. Bhaskaran Nair, v. State of Kerala

Case brief

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Biju, S/O. Bhaskaran Nair, v. State of Kerala

Case brief

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