Court allowed criminal appeal against conviction for possession of illicit arrack. Accused acquitted because prosecution failed to produce a sealed forwarding note proving the seized article reached the analyst in tamper-proof condition.
Conviction and sentence set aside; appellant acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944
CRL.A NO. 635 OF 2008
AGAINST THE JUDGMENT IN SC 127/2003 OF ADDITIONAL SESSIONS
COURT (ADHOC-II)KASARAGOD
APPELLANT/ACCUSED:
K.KUMARAN
S/O.(LATE) THIMMAN, RESIDING AT VANIYAM VAYAL,
PEROLE VILLAGE OF HOSDURG TALUK, NOW RESIDING AT
KALLYAN ROAD, BALLA VILLAGE OF HOSDURG TALUK.
BY ADV SRI.MURUGAN P.V.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
OTHER PRESENT:
0
SMT.HANA KARNOLIA MADONA CYRIL, AMICUS CURIAE,
SRI.SANAL.P.RAJ, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Criminal Appeal No.635/2008
2
P.V.KUNHIKRISHNAN, J.
Criminal Appeal No.635 of 2008 ----------------------------------------------
Dated this the 29th day of August, 2022
JUDGMENT
This appeal is filed by the accused in S.C.No.127/2003 on the file of the Additional Sessions Judge (Adhoc-II), Kasaragod. The above case is charge-sheeted against the appellant alleging offences punishable under Sections 55(a) and 64(A) of the Abkari Act.
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Criminal Appeal No.635/2008
the offence under Sections 8 (1) and (2) of the Abkari Act and he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for a period of three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
Criminal Appeal No.635/2008
4
submitted that the independent witness turned hostile to the prosecution and there is only the evidence of official witness available in this case. The Amicus Curiae further submitted that as per the analysis report, it is only stated that the sample contain ethyl alcohol. There is no evidence to show that the seized article is arrack. The Amicus Curiae also submitted that unless the prosecution is able to prove that the seized article is arrack as defined in Section 3(6A), the prosecution cannot succeed in these type of cases. The Amicus Curiae submitted that simply because the official witnesses deposed before the Court that the seized article is arrack, that is not enough and an expert opinion is necessary.
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seal in it. The importance of seal in forwarding note is considered by this Court in several decisions. The prosecution has to prove that the seized article reached in the hands of the analyst. For that purpose, the seal in the forwarding note is necessary. Admittedly there is no seal in the forwarding note. That itself is sufficient to acquit the accused because the prosecution failed to prove all the links starting from seizure of the property till it reaches in the hands of the analyst. This point is considered by this Court in several decisions. In Ravi v. State of Kerala [2011 (3) KLT 353] , the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition.
Therefore, the Criminal appeal is allowed in the following manner:
Criminal Appeal No.635/2008
6
sd/- P.V.KUNHIKRISHNAN JUDGE
JV
2 issues framed by the court
Whether the prosecution proved that the seized contraband reached the analyst in a tamper-proof condition without a seal on the forwarding note.
Whether the absence of a seal on the forwarding note warrants acquittal of the accused.
Colour shows how this judgement treated each authority
Ravi v. State of Kerala [2011 (3) KLT 353]Relied on¶38
4 provisions across 1 enactments
K.KUMARAN
STATE OF KERALA
P.V.KUNHIKRISHNAN
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