Sudhakaran vs State Of Kerala

Dr. Kauser Edappagath, J

This appeal is filed by the accused in S.C.No.399/2002 on the file of the Additional District & Sessions Court, Fast Track (Adhoc), Mavelikara (for short 'the court below) against the judgment of conviction and sentence under Sections 8(1), (2) and 55(a) of the Abkari Act.

The prosecution case in short is that on 23/04/2001 at 12.40 pm, the accused was found in possession of 600 ml of illicit arrack in a 5 litre capacity plastic cannas 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 P10 were marked. MO1 was identified. The court below after trial found the accused guilty for the offences punishable under Sections 8(1), (2) and 55(a) of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for a further period of one year. Challenging the said judgment, 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 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.

The aforesaid vital aspect was not taken into consideration by the court below while appreciating the prosecution case. For the reason 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 the 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.