Allowed

Suresh Kumar @ Babu v. State of Kerala

Kerala HC2 Mar 2021CRL.A/2493/2006

Case brief

AI extract

What is this about?

In this criminal appeal, the Kerala High Court acquitted the appellants charged under the Abkari Act. The Court held that the prosecution failed to prove the identity of the seized contraband because they did not produce and mark the forwarding note, which is essential to link the seized samples to the chemical analysis.

What did the court decide?

The judgment dated 08.12.2006 in Sessions Case No. 305 of 2001 is set aside; appellants are acquitted and set at liberty; bail bonds cancelled.

Suresh Kumar @ Babu Vs State of Kerala — Arbitration | Kerala HC (2021)

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CRL.A.No.2493 OF 2006

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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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TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

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CRL.A.No.2493 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 305/2001 DATED 08-12-2006 OF ADDITIONAL SESSIONS COURT (ABKARI, KOTTARAKKARA

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APPELLANTS/ACCUSED NOS 1 & 2:

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1 SURESH KUMAR @ BABU AGED 30 YEARS S/O., VIJAYAN,VIJAYAMANDIRAM, ARACKAL VILLAGE, PATHANAPURAM TALUK.

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2 MONACHAN S/O. JOHNYKUTTY AGED 27 YEARS, VAYALIL PUTHEN VEEDU, VALAKOM MURI, VALAKOM VILLAGE, KOTTARAKKARA TALUK.

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BY ADV. SRI.S.MUHAMMED HANEEFF

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REP.BY SUB INSPECTOR OF POLICE, KOTTARAKKARA POLICE STATION, (CRIME NO.700/1998), REP. BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR SMT. SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2493 OF 2006

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T.R. RAVI, J.

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CRL.APPEAL No.2493 of 2006

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--------------------------------------------------

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Dated this the 2^nd day of March 2021

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JUDGMENT

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The accused in S.C.No.305 of 2001 on the file of the Additional District & Sessions Court (Abkari), Kottarakkara are the appellants. The appeal has been filed challenging the judgment dated 08.12.2006, whereby the appellants have been found to be guilty of offences punishable under Sections 55(a) and (i) of the Abkari Act and have been sentenced to undergo simple imprisonment for nine months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for three months.

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The case of the prosecution is that on 15.10.1998 at about 11.30 a.m., the 2^nd accused was found to be in possession of 2 litres of arrack in a 10 litre jerry can, for the purpose of sale and the 1^st accused was found in possession of drinking glass and standing near the residence of one Rose of

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Mangalath Veedu. The contraband was seized, the accused were arrested, the crime was registered as Crime No.700/98 of

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CRL.A.No.2493 OF 2006

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Kottarakkara Police Station, investigation was conducted and charge was framed. The court below considered the prosecution evidence which included the oral testimony of PW's 1 to 4 and Exts.P1 to P6. Material Object was also identified. On the evidence on record, the court below recorded the finding that the accused are guilty of the offences charged against them and imposed the sentence as aforesaid. Aggrieved by the conviction and sentence, the accused are before this Court in this appeal.

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Heard Sri Muhammed Haneef, learned counsel appearing on behalf of the appellants and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

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The learned counsel for the appellant raised two main contentions; one of delay in producing the contraband articles before the court and the second, which is a serious lapse, of not producing and marking the forwarding note during the prosecution evidence. On verification of the judgment of the court below and evidence on record, I find considerable force in the arguments advanced by the learned counsel for the appellants. The forwarding note is the link to prove that the report of the Chemical examiner relates to the sample which

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CRL.A.No.2493 OF 2006

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was taken at the time of the seizure of the article and the specimen seal of the seal used for sealing the sample, which is to be affixed on the Forwarding note will ensure that the sample reaches the chemical examiner and the Court in tamper proof condition. However, in the case on hand, by not marking and proving the Forwarding note, the prosecution has miserably failed to establish the link that the sample sent had been taken from the seized articles and the very same sample had been forwarded to the chemical examiner in a tamper proof condition, and that it is the said sample that has been analysed to be contraband article. The necessity and requirement of producing and marking the Forwarding note has been emphasised and reiterated by this Court in several judgments. [See the decisions in Unnikrishnan Nair v. State of Kerala reported in ( 2020 (3) KHC 455) and Sebastian @ Para v. State of Kerala reported in ( 2020 KHC 478)] . In the light of the settled principles of law, the prosecution case has to fail and the appellants are entitled to be acquitted.

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Regarding the contention on delay, the learned counsel for the appellants has raised the contention on the

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CRL.A.No.2493 OF 2006

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basis of an observation in the judgment which says that the material object was received by the Court only on 10.11.1998. Comparing the same with the alleged date of occurrence of the crime, i.e., 15.10.1998, it is true that there is considerable delay in production of the seized articles before the court and it would have been sufficient for finding the appellants not guilty. However, I am not inclined to accept the said contention, because the court has also observed that the seized articles and accused were produced before the court along with Ext.P4 property list, which is seen dated 15.10.1998. As such, it is not safe to say that the seized articles reached the court only on 10.11.1998, merely relying on above referred sentence in the judgment of the court below. I am hence, not going into the correctness of the said contention, particularly since the contention regarding the failure to produce and mark the forwarding note is sufficient for the appellants to succeed in this appeal.

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In the above circumstances, the judgment dated 8.12.2006 in Sessions Case No. 305 of 2001 on the file of the Additional District & Sessions Judge (Abkari) Kottarakkara, is set aside. The appellants are acquitted and are set at liberty.

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CRL.A.No.2493 OF 2006

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Bail bonds if any executed by the appellants or on their behalf

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are cancelled. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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dsn

Suresh Kumar @ Babu v. State of Kerala

Case brief

What is this about?

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Suresh Kumar @ Babu v. State of Kerala

Case brief

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