Chembilakottu Vellachi vs State Of Kerala

Dr. Kauser Edappagath, J

This revision petition is directed against the judgment dated 21.10.2010 in Crl.A.No.100/2007 on the files of the Additional District and Sessions (Ad hoc) Court-I, Kasaragod (for short 'the appellate court') confirming the judgment dated 26.2.2007 in S.C.No.75/2005 on the files of the Assistant Sessions Court, Hosdurg (for short 'the trial court'). The revision petitioner is the accused. She faced trial for the offence punishable under Section 55(a) of the Abkari Act.

The prosecution case in short is that on 18.04.2001 at 6.30 pm, the accused was found in possession of 5 litres of country arrack at a place called Kalichampothy in Madikai Village in contravention of the Abkari Act and thereby committed the offence.

The prosecution examined PW1 to PW8 and marked Exts.P1 to P8. MO1 was identified. No defence evidence was adduced. Considering the evidence on record, the trial court found the accused/revision petitioner guilty and she was convicted for the offence punishable under Section 55(a) of the Abkari Act. She was sentenced to undergo simple imprisonment for one year and to pay a fine of ₹1,00,000/-(Rupees one lakh), in default to suffer simple imprisonment for a further period of three months. In appeal, the appellate court confirmed the finding of the trial court. Challenging the conviction and sentence passed by both the courts below, the revision petitioner has approached this Court.

I have heard 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 mahazar does not contain the specimen seal or its description. (ii) Ext.P4 forwarding note also does not contain the seal or its description.

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.

This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) has held that the forwarding note must contain the specimen of the seal affixed on the sample. 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. In the absence of seal in the forwarding note, 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 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 cannot be sustained.

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