In a criminal appeal for transporting arrack, the High Court allowed the appeal, acquitting the appellant because the forwarding note lacked the mandatory specimen seal, failing to prove the sample reached the Chemical Examiner untampered.
Appellant acquitted and set at liberty; appeal allowed; impugned conviction and sentence set aside.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
CRL.A.No.2964 OF 2008
AGAINST THE ORDER/JUDGMENT IN SC.NO.159/2005 DATED 02-12-2008 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) COURT-I , KOLLAM
APPELLANT/ACCUSED:
UNNIKRISHNAN, S/O RAMACHANDRAN PILLAI, MINI NIVAS, ANAYADI MURI, SOORANADU VILLAGE, KUNNATHOOR TALUK.
BY ADVS. SRI.T.GOPALAKRISHNAN SMT.THASNIM M.A.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REP.BY THE EXCISE INSPECTOR, SASTHAMKOTTA RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA (CRIME NO.49/2002 OF EXCISE RANGE, SASTHAMKOTTA).
BY SMT. SYLAJA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2964 OF 2008
2
JUDGMENT
Dated this the 1st day of March 2021
The accused in SC.No.159/2005 on the file of the Additional District and Sessions Judge Court (Adhoc) I, Kollam has filed this appeal aggrieved by the judgment dated 02.12.2008 whereby he has been found guilty of having committed the offences under Sections 8(1) and 8(2) of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 Lakh.
3
CRL.A.No.2964 OF 2008
Additional District and Sessions Judge (Adhoc) IV, Kollam.
was examined as PW1, turned hostile. The Preventive Officer, Excise Range Office, Sasthamkotta was examined as PW2. PW4 is the Preventive Officer in charge of Excise Office, Sasthamkotta who received the accused, property and records brought by PW2 and registered Ext.P4 occurrence report. PW6 who investigated the crime expired before the trial of the case. The Court below considered the evidence on record and oral evidence of the witnesses and found the accused guilty and convicted and sentenced him as stated above. Aggrieved by the judgment, the accused has come up with this appeal. 4. According to the accused, no sample was taken from the
spot or in the presence of the accused. Curiously, it is seen from the judgment that what is marked as MO1 is the entire ‘thondy’ seized without reducing the volume of 200ML which was allegedly taken as sample. On verification of the records, I find that Ext.P7 which was marked as the forwarding note by which the sample was sent to the Chemical Examiner does not bear the specimen seal affixed on the sample. The requirement of affixing of the specimen seal impression and the consequence of such failure has been considered by this Court in several judgments and is no longer res integra [ See Ravi v. State
CRL.A.No.2964 OF 2008
4
of Kerala 2018 (5) KHC 352, Balachandran v. State of Kerala 2020 (3) KHC 697, Smithesh v. State of Kerala 2019 (2) KLT
974, Prakasan & another v. State of Kerala 2016 KHC 96)] . This Court has held that the above said failure will lead to a finding that the prosecution has failed to prove beyond reasonable doubt that the very sample taken at the spot of occurrence had reached the chemical examiner for analysis, in a tamper proof condition.
In the light of the law declared by this Court, on the facts of this case, the appellant is entitled to the benefit of doubt and thus succeed in the appeal. The judgment dated 02.12.2008 in SC.No.159/2005 0f the Additional District and Sessions Court (Ad hoc) I, Kollam 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
Sn
1 issue framed by the court
Whether the failure to affix the specimen seal on the forwarding note deprives the prosecution of proof that the sample reached the chemical examiner in tamper-proof condition?
Colour shows how this judgement treated each authority
Ravi v. State of KeralaFollowed¶5
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, Prakasan & another v.
1 provisions across 1 enactments
UNNIKRISHNAN, S/O RAMACHANDRAN PILLAI
STATE OF KERALA
T.R. RAVI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
