JUDGMENT

Dated this the 24th day of March 2021 The accused in SC.No.485/2006 on the file of the Court of Additional Sessions Judge (Adhoc) II, Kalpetta has filed this appeal being aggrieved by the judgment dated 01.11.2008 whereby the appellant was found guilty of offence under section 8(2) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months.

2. The case of the prosecution is that, the Sub Inspector of Police, Padinharathara Police Station had proceeded to the house of the accused on the basis of the information received that the accused was engaged in sale of arrack and on reaching the premise, it was found that the accused was engaged in sale of arrack and also in possession of apparatus for distilling arrack. On the side of the prosecution, PW1 to PW6 were examined and Exts.P1 to P8 marked. MO1 to MO7 were identified and marked. Even though the charge was laid against the accused under Sections 55(a), (g) and (i) of the Abkari Act, the Court below found that the prosecution has succeeded only to the extent of proving that the accused was in possession of contraband arrack and hence he was found guilty of offence under Section 8(2) of the Abkari Act.

3. Even though, several grounds have been urged in the appeal, on going through the records, I find that there are serious infirmities in the case put forward by the prosecution. The contraband articles were produced before the Court along with Ext.P4 property list. On a perusal of Ext.P4, it can be seen that even though the contraband articles were seized on 27.08.2005, the same were produced before the Court only on 29.08.2005 and no evidence is led by the prosecution to explain the delay of two days in producing the contraband before the Court. This Court has held that in the absence of proper explanation by the prosecution for the delay in producing the contraband articles before the Court, even one day's delay is fatal. (See. Ravi v. State of Kerala [2018 (5) KHC 352]), Apart from the aspect of delay in production of the contraband before the Court, I find that Ext.P5 which is produced as the forwarding note does not contain the impression of the specimen seal used for sealing the sample. The said document also does not indicate the name of the person with whom the sample is to be sent to the Chemical Examiner. Even though the Magistrate is seen to have counter signed the said document, which is seen to be prepared on 01.09.2005, there is no date along with the initial of the Magistrate to indicate the date on which the counter signature was put. This Court has held in a series of decisions that the failure to affix the impression of the specimen seal used for sealing the sample on the forwarding note is fatal for the prosecution case. (See Ravi v. State of Kerala [2018 (5) KHC 352]; Balachandran v. State of Kerala [2020 (3) KHC 697]; Smithesh v. State of Kerala [2019 (2) KLT 974]. So also, this Court has also held that failure to write the date on which the Magistrate has counter signed the forwarding note and write the name of the personal with whom the sample is to be sent to the chemical examiner in the forwarding note, are fatal for the prosecution case. [See Kumaran v. State of Kerala [ 2016 (4) KLT

718].

4. In the result, the judgment dated 01.11.2008 in SC.No.485/2006 on the file of the Court of Additional Sessions Judge (Adhoc) II, Kalpetta is set aside. The accused is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. The appeal stands allowed.