Binu vs State Of Kerala

Dr. Kauser Edappagath, J

This revision petition is directed against the judgment dated 19.04.2011 in Crl.A.No.39/2009 on the files of the Additional Sessions (Adhoc) Court-I, Pathanamthitta (for short 'the appellate court') confirming the judgment dated 02.02.2009 in C.C.No.1127/2004 on the files of the Judicial First Class Magistrate Court, Adoor (for short 'the trial court'). The revision petitioner is the accused. He faced trial for the offence punishable under Section 55(a) r/w Section 65 of the Abkari Act.

The prosecution case in short is that on 25.01.1997 at about 1.30 p.m., the revision petitioner was found transporting 35 litres of illicit spirit in a Jeep in contravention of the Abkari Act and thereby committed the offence.

The prosecution examined PW1 to PW6 and marked Exts.P1 to P6. MO1 was identified. No defence evidence was adduced. Ext.D1 was marked on the side of defence. Considering the evidence on record, the accused/revision petitioner was found guilty and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for six months and to pay a fine of ₹1,000/-(Rupees Thousand only), in default to suffer simple imprisonment for a period of one month. Challenging the conviction and sentence passed by both the courts below, the revision petitioner has approached this Court.

I have heard Sri.Roshen D.Alexander, the learned counsel for the revision petitioner and Smt.S. Rekha, the learned Senior Public Prosecutor.

The learned counsel for the revision petitioner assailed the impugned judgments as illegal and unsustainable mainly on two grounds. (i) Ext.P1 seizure mahazar does not contain the specimen seal or its description. (ii) The prosecution did not produce the forwarding note.

The first point canvassed by the learned counsel is regarding the absence of specimen seal in the mahazar. This Court in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does not contain the sample seal or the description of the seal used.

The next point canvassed by the learned counsel for the revision petitioner is regarding the non production of the forwarding note. The learned counsel submitted that mere production of the laboratory report that the sample tested was contraband substance is not sufficient unless and until the forwarding note also is produced. This Court in Gireesh @ Manoj v. State of Kerala[2019 KHC 655] has held that in the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. The forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. Hence, I am of the view that non production of the forwarding note is fatal to the prosecution.

The aforesaid vital aspects were not taken into consideration by the courts below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the courts below suffer from illegality and it cannot be sustained.

In the result, the revision petition stands allowed. The conviction and sentence passed by the courts below vide the impugned judgments are set aside. The revision petitioner is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled.