Allowed

Majeed,S/O.Kassim Rawther v. State of Kerala

Kerala HC8 Mar 2021CRL.A/937/2006

Case brief

AI extract

What is this about?

This high court allowed a criminal appeal and acquitted the appellant for offences under the Abkari Act. The court held that the prosecution failed to produce the forwarding note required to prove the chain of custody of the seized sample sent for chemical analysis.

What did the court decide?

The judgment of the trial court was set aside, the accused was acquitted and set at liberty, and the bail bond was cancelled.

Majeed,S/O.Kassim Rawther Vs State of Kerala — Criminal Trial and Appeal | 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 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

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CRL.A.No.937 OF 2006

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AGAINST THE JUDGMENT IN SC.NO 149/2001 DATED 18.04.2006 OF THE COURT OF ADDITIONAL SESSIONS JUDGE, KOTTARAKKARA

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APPELLANT/ACCUSED:

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MAJEED, S/O.KASSIM RAWTHER VAZHAPPARA HARIJAN COLONY, PATHIRICKAL MURI, PATHANAPURAM VILLAGE.

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BY SRI.VINOY VARGHESE KALLUMOOTTILL

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RESPONDENTS/COMPLAINANTS:

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

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2 SUB INSPECTOR OF POLICE PATHANAPURAM POLICE STATION.

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R1-2 BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.937 OF 2006

JUDGMENT

Dated this the 8^th day of March 2021

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The accused in SC.No.149/2001 on the file of the Court of Additional Sessions Judge (Abkari), Kottarakkara has filed this appeal being aggrieved by the judgment dated 18.04.2006 whereby he has been found guilty of offence under section 55(g) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for two years and to pay of 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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The case of the prosecution is that on 28.07.1999 at 8.10 pm, the accused was found in possession of 95 litres of wash with implements for manufacture of arrack in the rubber plantation owned by Saithu Mazoodu Ravuthar. The offence was said to have been detected by the Sub Inspector of Police, Pathanapuram and his party and he was CW5. CW5 seized the contraband articles, arrested the accused, conducted the investigation and laid the charge. The case was originally filed as CP.No.64/1999 before the Judicial Magistrate of First Class-III, Punalur. It was later committed to Sessions Court, Kollam from where it was made over to the Assistant Sessions Court, Kottarakkara. The case was

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CRL.A.No.937 OF 2006

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later transferred to the Additional Sessions Judge (Abkari), Kottarakkara and numbered as SC.No.149/2001. The charges were framed under Section 55(g) and 55(h) of the Abkari Act. On the side of the prosecution, PW1 to PW3 were examined, Exts.P1 to P5 were marked and MO1 to MO5 were identified. On the basis of the evidence on record, the trial Court found the appellant guilty of offence under Section 55(g) of the Abkari Act. The charge under 55(h) was found against the prosecution. The trial Court imposed the sentence referred above.

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Heard. Shri.Vinoy Varghese Kallummoottil, learned counsel on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the state.

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The main contention raised by the counsel for the appellant is that, the prosecution has failed to produce, mark and prove the forwarding note, by which the sample allegedly drawn from the seized articles was sent for chemical examination and for that sole reason, the accused is entitled to be acquitted. On going through the file and the judgment and its appendix, it is seen that the contention raised by the counsel for the appellant is justified. Ext.P1 is the custody memo which would show that the accused was arrested on 28.07.1999 and produced before the

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CRL.A.No.937 OF 2006

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Magistrate on 29.07.1999. Ext.P2 is the Mahazar said to have been prepared at the time of detection of the offence and the same is also dated 28.07.1999. Ext.P4 is the list of property which has been sent to the Magistrate and the same is dated 29.07.1999. As contended by the learned counsel for the appellant, the forwarding note is not seen produced and marked in the case. Ext.P5 which is the chemical analysis certificate issued on the basis of the analysis of the sample sent by the Court is seen dated 06.03.2000. A reading of Ext.P5 will show that the sample had been sent along with a reference letter No.TR.241/1999 dated 06.09.1999, which is more than one month after the property list was produced before the Court. There is nothing in evidence to explain the huge delay in forwarding the alleged sample for chemical examination and as to the manner in which the sample was kept in safe custody during this period.

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The consequences of the failure to produce, prove and mark the forwarding note in a trial for offences under Abkari Act is no longer res integra [see Unnikrishnan Nair v. State of Kerala [2020 (3) KHC 455] and Sadasivan @ Para v. State of Kerala [2020 KHC 478]. This Court has held that the consequence

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CRL.A.No.937 OF 2006

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of such a failure is that it cannot be held that the prosecution has to prove beyond the reasonable doubt that the very same sample taken

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at the spot of occurrence had reached the chemical examiner for analysis in tamper proof condition.

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In the light of the law laid down by this Court and on the facts of the case, the judgment dated 18.04.2006 on the file of the Court of Additional Sessions Judge (Abkari), Kottarakkara in SC.No.149/2001 is set aside. The accused is acquitted and set at liberty. Bail bond if any executed by the appellant or on his behalf are cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Majeed,S/O.Kassim Rawther v. State of Kerala

Case brief

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Majeed,S/O.Kassim Rawther v. State of Kerala

Case brief

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