Rajan vs State Of Kerala

Dr. Kauser Edappagath, J

This appeal has been preferred by the appellant/accused in S.C.No.354/2006 on the files of the Additional Sessions Judge Fast TracK Court No.II, Palakkad (for short the court below), challenging the judgment dated 30.1.2008 convicting and sentencing him under Sections 8(1) & (2) of the Abkari Act.

The prosecution case in short is that on 11.10.2000 at 6.00 pm, the accused was found possessing and transporting 2 litres of arrack in a 5 litre black colour cannas through the road in front of house bearing Door No.PP VIII/237 at 4 cent colony, Mala Kakkattiri Desom, Pattithara Village of Ottapalam Taluk in contravention of the Abkari Act and Rules and thereby committed the offence.

To prove the case of the prosecution, PW1 to PW5 were examined and Exts. P1 to P9 were marked. MO1 was identified. No defence evidence was adduced. The court below after trial found the accused guilty for the offences punishable under Sections 8(1) and (2) of the Abkari Act and convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of ₹1,00,000/-, in default to suffer simple imprisonment for a further period three months. Challenging the said conviction and sentence, the accused has filed this appeal.

I have heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

The learned counsel for the appellant impeached the finding of guilt passed by the court below on the ground that the mahazar does not contain 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 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.P2 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 court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court 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 offences charged against him and accordingly he is acquitted. His bail bond is cancelled.