Krishnan vs State Of Kerala

Dr Kauser Edappagath, J

This revision petition has been directed against the judgment dated 25/11/2009 passed by the IVth Additional District and Sessions Judge, (Adhoc-I), Thodupuzha (for short, 'the appellate court') in Crl.Appeal No.360/2008 confirming the judgment dated 25/11/2008 passed by the Assistant Sessions Judge, Kattappana (for short, the trial court) in SC No.60/2007.

The revision petitioner is the accused. He faced trial under Section 8(1) & (2) of the Abkari Act.

The prosecution case in short is that on 21/03/2003 at 12.10 pm, the revision petitioner was found in possession of 2.5 litres of illicit arrack in contravention of the Abkari Act and Rules and thereby committed the offence.

On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge under Section 8(1) & (2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW6 were examined and Exts. P1 to P9 were marked. MO1 was identified. On the side of the defence, Exts.D1, D2 and D2(a) were marked. On appreciation of evidence, the trial court sentenced the accused to undergo simple imprisonment for a period of 1 year and to pay a fine of ₹1,00,000/-, in default to suffer simple imprisonment for a period of three months. In appeal, the appellate court confirmed the conviction and sentence. Aggrieved by the conviction and sentence passed by the courts below, the accused has preferred this revision petition.

I have heard Sri. K. Biju, the learned counsel for the revision petitioner and Smt. S. Rekha, the learned Senior Public Prosecutor.

The learned counsel for the revision petitioner impeached the finding of guilt passed by the courts below on the ground that Ext.P1 mahazar does not contain seal or its description.

The learned Public Prosecutor, on the other hand, supported the findings and verdict of the courts below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

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 aforesaid vital aspect was 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 criminal revision 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 offences charged against him and accordingly he is acquitted. His bail bond is cancelled.