Allowed

Sahadevan v. State of Kerala

Kerala HC12 Mar 2021CRL.A/940/2006

Case brief

AI extract

What is this about?

In an appeal against conviction for possession of contraband arrack, the High Court acquitted the appellant due to fatal flaws in the prosecution evidence, specifically the absence of a specimen seal impression on the forwarding note and lack of proof regarding how the sample submitted for chemical analysis was collected.

What did the court decide?

The judgment of the Additional Sessions Judge is set aside; the appellant is acquitted and set at liberty; bail bonds are cancelled.

Sahadevan Vs State of Kerala — Cheque Dishonour | 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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FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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CRL.A.No.940 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 608/2000 DATED 04-04-2006 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM

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AGAINST THE ORDER/JUDGMENT IN CP 35/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ATTINGAL

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APPELLANT/ACCUSED:

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SAHADEVAN S/O.RAGHAVAN, KALLIKKODU VEEDU, MAHADEVAPURAM, ALINERA MURI, AYIROORPARA.

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BY ADVS. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU

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RESPONDENT/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SMT.SYLAJA.S.L

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.940 OF 2006

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JUDGMENT

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Dated this the 12th day of March 2021

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The accused in S.C.No.608/2000 on the file of the Additional Sessions Court, Fast Track (Adhoc) IV, Thiruvananthapuram has filed this appeal being aggrieved by judgment dated 04.04.2006, whereby he has been found guilty of offence under Section 8(1) & (2) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of 1,00,000/- and in default of payment of₹ fine, to undergo rigorous imprisonment for a further period of 3 months.

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2. The case of the prosecution is that on 20.05.1998, the Preventive Officer, Excise Range

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office, Kazhakkuttom and party, who were on patrol duty, had found the accused walking along the road holding a plastic can in suspicious circumstances and on detaining the accused and verifying the contents of

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CRL.A.No.940 OF 2006

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the can, it was found that it was a 2½ litre can which contained 1 litre of contraband arrack. The accused was arrested, the contraband arrack was seized and the accused along with the thondi articles were produced before the Excise Range office, Kazhakkuttom and the crime was registered. Subsequently, the accused along with the contraband arrack and records were produced before the Judicial First Class Magistrate's Court II, Attingal. After completion of investigation, the Excise Inspector, Excise Range Office, Kazhakkuttom laid the charge before the JFCM II, Attingal, who committed the case to the Court of Sessions as per order dated 08.05.2000.

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3. Before the court below, the prosecution examined PWs 1 to 5, Exts.P1 to P9 were marked and MO1 was identified. On the basis of the evidence on

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record, the Sessions Court found that the appellant was guilty of the offence charged and imposed the sentence referred above.

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CRL.A.No.940 OF 2006

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4. Heard.

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5. Even though several contentions are taken in

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the memorandum of appeal, there is a flaw in the case of the prosecution. Ext.P8 purports to be the requisition for chemical analysis, which has been preferred by the Excise Inspector, Kazhakkuttom. On verification of the records, I find that Ext.P8 has been produced before the court on 20.05.1998. Admittedly, no sample was taken at the time of detection of the crime and the entire can containing the contraband arrack had been produced before the court. The Excise Inspector has signed the requisition

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on 20.05.1998. However, no date is seen on the requisition letter, indicating the date on which the article was forwarded to the chemical examiner. There is a forwarding letter attached to the requisition

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form, which is address from the Magistrate to the Chemical Examiner. Even though a date 27.05.1998 has been written on that, the same has been cancelled and

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CRL.A.No.940 OF 2006

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the date 12.06.1998 has been written. This letter also does not contain a date after the initial of the Magistrate. However, the letter indicates that the article was despatched on 12.06.1998. At the same time, Ext.P5, which was the chemical analysis report, shows that the articles had reached the Chemical Examiner on 12.06.1998 along with a letter dated 27.05.1998. Apart from the above discrepancies regarding the dates and the failure to write the date below the initial of the Magistrate, there is yet another glaring factor. The forwarding note does not contain the impression of the specimen seal which has been used for sealing the sample/material object. Moreover it is seen from Ext.P5 report that what has been received by the Chemical Examiner is only a bottle containing 180 ml of a clear and colourless liquid. There is absolutely no evidence to link the accused with the material which has been examined by the Chemical Examiner. This is for the reason that there

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CRL.A.No.940 OF 2006

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is no evidence to show at what point of time 180 ml of the contraband arrack was taken as sample in a bottle. There is nothing to show who took the sample. There is nothing to show how the bottle was sealed and which was the seal used. The forwarding note does not contain the impression of the specimen seal. Since the entire thondi articles were produced before the court, the prosecution was duty bound to examine the thondi clerk to prove the aspect of taking sample from the articles which were produced before the court or at least produced some proceedings by which such sample was taken. No such evidence is forthcoming regarding the above. It is well settled that the absence of the

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impression of the specimen seal used for sealing the sample is fatal to the case of the prosecution. (See Ravi V. State of Kerala [2018 (5) KHC 352] &

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Balachandran V. State of Kerala [2020 (3) KHC 697]) .

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In the above circumstance, the appellant is entitled to succeed in this appeal. The judgment dated

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CRL.A.No.940 OF 2006

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04.04.2006 of the Additional Sessions Judge, Fast Track Court (Adhoc) IV, Thiruvananthapuram in S.C.No.608/2000 is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled. The appeal

stands allowed.

Sd/-

T.R.RAVI, JUDGE

Sahadevan v. State of Kerala

Case brief

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Sahadevan v. State of Kerala

Case brief

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