Uthaman vs State Of Kerala

Dr. Kauser Edappagath, J

This appeal has been preferred by the appellant/accused in S.C.No.304/2007 on the files of the Additional Sessions Judge, Fast TracK (Adhoc-I), Alappuzha (for short the court below), challenging the judgment dated 25.2.2009 convicting and sentencing him under Sections 8(1) & (2) and 55 (g) of the Abkari Act.

The prosecution case in short is that on 1.3.2000 at 2.15 am, the accused was found in possession of 20 litres of arrack in two kannas having capacity of 10 liters each in contravention of the Abkari Act and Rules and thereby committed the offence.

To prove the case of the prosecution, PW1 to PW4 were examined and Exts. P1 to P7 were marked. On the side of the defence DW1 and DW2 were examined and Exts. D1 and D2 were marked. MO1 to MO9 were identified. The court below after trial found the accused guilty for the offences punishable under Sections 8(1), (2) and 55 (g) of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for a period of 4 months and to pay a fine of ₹1,00,000/-, in default to suffer simple imprisonment for a further period of 2 months. 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 two grounds. (1) The forwarding note is not produced. (2) 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 first 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 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.