Kerala High Court
Unknown vs By Adv.Sri.K.R.Sunil on 30 November, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939
CRL.A.No. 2260 OF 2005
AGAINST THE JUDGMENT IN SC 669/2003 ON THE FILES OF THE COURT OF ADDL. SESSIONS JUDGE,
FAST TRACK COURT 1, ALAPPUZHA DATED 30-11-2005
JUDGMENT IN CP 73/2003 of J.M.F.C., KAYAMKULAM
APPELLANT/ACCUSED
BALAKRISHNAN, S/O THEVAN,
THONDATHARAYIL HOUSE, ILIPPAKKULAM, KOTTANAM,
MAVELIKKARA.
BY ADV.SRI.K.R.SUNIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE EXCISE INSPECTOR, THROUGH THE PUBLIC
PROSECUTOR,, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.P.CHANDRASENAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.2260 OF 2005
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Dated this the 5th day of January, 2018
JUDGMENT
This appeal is preferred against the judgment of conviction and sentence made in S.C.No.669/2003 on the files of the Court of Additional Sessions Judge, Fast Track Court -I, Alappuzha. The conviction is under Section 8(1) and (2) of the Abkari Act. The sentence is to undergo imprisonment for three years and to pay a fine of Rs.1,00,000/- with default simple imprisonment for six months.
2. When the appeal came up for hearing, the learned counsel for the appellant submitted before this court that here is a case where the link in between the alleged contraband and the chemical analysis report is not brought out by the prosecution. The forwarding note was not marked in this case.
3. I heard the learned Public Prosecutor. The learned Crl.Appeal No.2260/05 2 Public Prosecutor submitted before this court that on perusal of the records, it can be seen that office copy of the forwarding note was very well present in the records. It was only an omission to mark the same.
4. After hearing the learned counsel, I perused the records and evidence in this case. The facts necessary for disposal of this appeal is as follows :
On 12/03/2002 at about 6 p.m., the Preventive Officer attached to the Excise Circle Office, Mavelikkara detected the crime. The appellant was seen in possession of a can containing 10 litres of illicit arrack which was seized, sampling was done, mahazar was prepared, arrest memo prepared and intimation given and accused was produced before the Excise Office, Mavelikkara.
5. The prosecution altogether examined 5 witnesses and Exts.P1 to P4 were marked. MO1 were also identified. PW1 is the detecting officer. PWs 2 and 4 were the independent witnesses who turned hostile. PW3 is an Excise Official who was in the Crl.Appeal No.2260/05 3 detecting party. PW5 is the Excise Inspector who conducted the investigation and filed the charge.
6. In this case, on perusal of the records, it can be seen that the forwarding note was not marked in the proceeding. An unmarked document cannot be looked into, to come to a conclusion that accused committed the offence. On perusal of the records, it is seen that unmarked forwarding note is very well available. But at the very same time, it can be seen that in the said forwarding note, the name of the guard is not written. As per the dictum laid down by this court in Kumaran P v. State of Kerala and another ( 2016 (5) KHC 632), if the name of the guard is not written in the forwarding note, the thondi clerk of the court or the concerned excise guard who actually took the sample to the analyst has to be examined. Further as per the dictum laid down by this Court in Krishnan H. v. State ( 2015 (1) KHC 822), it was held that even the sample seal affixed by the excise official also should be in the forwarding note. When the forwarding note itself is not Crl.Appeal No.2260/05 4 marked, such a comparison is not possible. More over, on perusal of the records, it can be seen that even though the detection was on 12.03.2003 by the preventive officer, he was produced before the Excise Inspector only on 13.03.2002. There is delay in the compliance of the mandate under Section 38 of the Abkari Act. It is also relevant to note that the appellant got a case that he was implicated in the crime due to the animosity of an abkari contractor.
Considering the totality of the case, I feel that benefit of doubt can be extended to the appellant. Hence the appeal is allowed setting aside the conviction and sentence passed by the court below against the appellant. The bail bond stands cancelled.
K.P.JYOTHINDRANATH JUDGE sv.