Allowed

Annamma v. State of Kerala

Kerala HC4 Mar 2021CRL.A/1546/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal and acquitted the appellants charged under the Abkari Act. The court set aside the conviction because the forwarding note containing the seized arrack sample contained serious discrepancies, including missing signatures and unexplained dates, failing to prove the chain of custody.

What did the court decide?

The judgment dated 17.07.2006 is set aside; the appellants are acquitted and set at liberty; bail bonds are cancelled.

Annamma 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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THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

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CRL.A.No.1546 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 174/2004 DATED 17-07-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA

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AGAINST THE ORDER/JUDGMENT IN CP 68/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAPPANA

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APPELLANTS/ACCUSED:

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1 ANNAMMA

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W/O.PHILIPOSE, VEMBINCHIRA HOUSE, KATTAPPANA VILLAGE, NIRMALA CITY KARA.

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2 VARGHESE @ BABY VEMBINCHIRA HOUSE KATTAPPANA VILLAGE, NIRMALA CITY KARA.

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BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA

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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 PUBLIC PROSECUTOR SMT. SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1546 OF 2006

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JUDGMENT

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Accused Nos.1 & 2 in S.C. No.174/2004 on the file of the Additional Sessions Court (Adhoc-II), Thodupuzha has filed this appeal being aggrieved by the judgment dated 17.07.2006, whereby the court below has found that the accused are guilty of offence under Sections 55(a) & 8(2) of the Abkari Act and has sentenced them to undergo rigorous imprisonment for 3 months each and to pay a fine of 1,00,000/- each and in default to₹ undergo rigorous imprisonment for a further period of 3 months each.

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2. The case of the prosecution is that at 12.10 p.m. on 06.03.2001, the accused were found in house No.1/271 of the Kattappana Panchayat belonging to the 2^nd accused, in possession of arrack in 15 polythene covers of capacity 150 ml each. CW1, the Sub Inspector of Police, Kattappana, who searched the house, arrested the accused from the house, seized arrack and on reaching the Police Station, registered Crime

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CRL.A.No.1546 OF 2006

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No.134/2001. After completion of investigation, charge was laid before the Judicial First Class Magistrate Court, Kattappana and the case was taken on file as C.P. No.68/01. The Magistrate committed the case to the Court of Sessions, Thodupuzha from where it was made over to the Addl. Sessions Court (Adhoc II), Thodupuzha for trial.

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3. Before the trial court, Exts.P1 to P8 were marked, MO1 to 3 were identified and PW1 to PW5 were examined on the side of the prosecution. The court below after consideration of the evidence on record found the accused guilty of the offences charged and imposed the sentence as aforesaid.

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4. Heard.

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5. Even though several contentions are taken in the appeal by the appellants, I find that the

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appellants are entitled to succeed for the reason that Ext.P6 which has been marked as the forwarding note along with which the sample was allegedly sent for chemical examination, contains serious discrepancies.

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CRL.A.No.1546 OF 2006

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Firstly, the document does not even bear the signature of the Magistrate as is required. Even though the note is dated 04.06.2001, I find that a covering letter from the Judicial First Class Magistrate, Kattappana to the Joint Chemical Examiner is annexed thereto, which is seen dated 28.06.2001. There is nothing on record as

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to when exactly the sample reached the court, the manner in which it was kept in safe custody till it reached the Court and the date on which it was sent for chemical analysis. In the circumstances, even though a document purporting to be a forwarding note has been produced, the same does not contain all the necessary requirements of a Forwarding note and hence cannot be treated as a Forwarding note at all. The primary document which links the contraband articles and the sample that 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

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CRL.A.No.1546 OF 2006

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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 KHC 478] . In such circumstances, the accused are entitled to the benefit of doubt and to the acquittal.

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Hence, the judgment dated 17.07.2006 in S.C.No.174/2004 of the Additional Sessions Court (Adhoc II), Thodupuzha is set aside. The accused are acquitted and set at liberty. Bail bonds if any executed by the appellants or on their behalf are cancelled. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Annamma v. State of Kerala

Case brief

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Annamma v. State of Kerala

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