Mani, S/o Chothi vs State Of Kerala

Dr.Kauser Edappagath, J

This appeal has been preferred by the accused in S.C.No.975/2005 on the files of the IIIrd Additional Sessions Judge (Adhoc) Fast Track-I, Thrissur against the judgment dated 9.8.2006.

The appellant/accused faced trial under Section 58 of the Abkari Act.

The prosecution case in short is that on 3.7.2003 at 11 am, the accused was found carrying 9 litres of arrack along Murukkumpara-Chekkumkuzhi Road at Murukkumpra Desom in Mandamangalm Village in contravention of the Abkari Acts and Rules and thereby committed the offence.

On receipt of summons, the accused appeared at the court below. After hearing both sides, charge was framed under Section 58 of the Abkari Act against the accused. 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 and MO2 were identified. No defence evidence was adduced. Considering the evidence on record the court below found the accused guilty under Section 58 of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for three months. Aggrieved by the conviction and sentence the appellant preferred this appeal.

I have heard Sri. Rahul Sunil, the learned counsel for the appellant and Sri. Sanal P. Raj, the lerned Public Prosecutor.

The learned counsel for the appellant assailed the finding of guilt against the appellant as illegal and unsustainable mainly on two grounds.

(1) The forwarding note is not produced. (2) The mahazar does not contain sample seal or its description.

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

The main contention canvassed by the learned counsel for the appellant 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 next point canvassed by the learned counsel is regarding the absence of sample 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 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 criminal appeal stands allowed. The conviction and sentence passed by the court below vide impugned judgment are set aside. The appellant is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled.