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2018 DIGILAW 17 (KER)

Jayakumar v. State of Kerala

2018-01-06

K.P.JYOTHINDRANATH

body2018
JUDGMENT : This appeal is preferred against the judgment of conviction and sentence dated 19.7.2005 made in SC 139/04 on the files of the Additional Sessions Court (Adhoc) III Kollam. 2. When the appeal came up for hearing, Adv. Sri. Ajivass V.A., the counsel appointed by the High Court Legal Services Committee by its order No.HCLSC(P)417/2017 (A2) dated 9.11.2017 submitted that in this case the conviction is under Section 55(a) of the Abkari Act. The sentence is to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh in default to undergo rigorous imprisonment for six months. 3. The prosecution case in a nutshell is that on 3.10.1999 at 11.30 hours, the accused was found in possession of 30 polythene covers each containing 100 ml arrack and thereby committed the offence. The detection was by Excise Range Inspector, Kollam and the contraband was seized, sample lifted, crime registered, investigated, and charge was filed. Prosecution altogether examined four witnesses and Exts.P1 to P8 were marked. After appreciating the evidence, the court below convicted the accused. Aggrieved by the above conviction and sentence, as stated above, this appeal preferred. 4. It is submitted by the learned counsel that Ext.P7 is the forwarding note prepared, while the sample was forwarded to the analyst. It will show that neither the name of the Excise Guard nor the specimen seal impression can be seen in the said document. As per the dictum laid down by this court in Kumaran P. v. State of Kerala, 2016 (5) KHC 632 and Krishnan H. v. State, 2015 (1) KHC 822 , there should be the name of the Guard and if the name of the guard is not mentioned therein, the thondi clerk of the court or the guard who had taken the sample to the analyst should have been examined. As per the dictum laid down in the decision in Krishnan's case (supra) it can be seen that even the impression of the seal found on the sample should be affixed in the forwarding note. 5. I heard the learned Public the Prosecutor. 6. After hearing the learned Public Prosecutor, this court perused Ext.P7 which shows that neither the name of the Guard nor the specimen seal impression is seen in the said document. The link in between the seized article and analysis report will be missing. 5. I heard the learned Public the Prosecutor. 6. After hearing the learned Public Prosecutor, this court perused Ext.P7 which shows that neither the name of the Guard nor the specimen seal impression is seen in the said document. The link in between the seized article and analysis report will be missing. Thus, going by the dictum laid down by the above referred decisions, it can be seen that this is a case where benefit of doubt can be extended to the appellant. Hence the appeal is allowed and the conviction and sentence passed by the court below is hereby set aside. The bail bond stands cancelled.