IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

ND WEDNESDAY, THE 2 DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRL.A NO. 1574 OF 2007 AGAINST THE JUDGMENT DATED 21.08.2007 IN SC 400/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA CP 47/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR APPELLANT/ACCUSED:

SIVADASAN NAIR @ SHAJI S/O.CHANDRASEKARAN, THANDISERRY VEEDU, VALLAMKULAM MURI, ERAVIPEROOR VILLAGE, THIRUVALLA. NOW RESIDING AT ANIL BHAVANAM, MALLIKKAMURI, THATTA, PANDALAM, THEKKEKARA VILLAGE.

BY ADVS.

SRI.M.T.SURESHKUMAR RESPONDENT/COMPLAINANT:

STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY ADV.

SRI. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellant is the accused in S.C. No.400/2006 of the Additional Sessions Court (Adhoc) Fast Track Court – II, Pathanamthitta. The aforesaid case arises from O.R. No.45/2004 of Adoor Excise Range.

2. The aforesaid case is registered against the petitioner on the allegation that, on 19.05.2004 at 12 o’clock noon, the accused was found holding a white plastic can with 5 litres of arrack on the road in front of Sreekrishna Vilasam U.P. School at Thattamallika Muri in Pandalam Thekkekara Village. He was apprehended by the Excise Party headed by the Excise Inspector, Adoor, along with the contraband article. From the said arrack, 300 ml was taken in a bottle having a capacity of 375 ml and sealed. O.R.45/2004 was registered against the appellant for the offences punishable under Section 8(1) and (2) of the Kerala Abkari Act. Based on the same, an investigation was conducted, and the final report was submitted before the Judicial First Class Magistrate Court, Adoor, where the same was taken into the file as C.P. No.47/2006. Upon completing the legal formalities, the case was committed to Session Court, Pathanamthitta, and later, the same was made over to the court of Additional Sessions Judge (Adhoc) Fast Track II, Pathanamthitta, wherein it was tried as S.C.

No.400/2006.

3. In support of the prosecution, PWs 1 to 5 were examined, Ext.P1 to P8 were marked, and the plastic can containing 4.700 litres of arrack was identified. After completion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., and the incriminating materials brought out during trial were put to him, which he denied. No defence evidence was adduced. After evaluating the materials produced by the prosecution, the Sessions Court concluded that the appellant is guilty of the offence under Section 8(1) and (2) of the Abkari Act and thereby sentenced the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default sentence for six months. This Criminal Appeal is filed challenging the aforesaid order of conviction and sentence.

4. Heard Sri. Sreelakshmi Sabu, learned counsel appearing for the appellant and Sri. Sudheer Gopalakrishnan, learned Public Prosecutor, appearing for the State.

5. The specific contention put forward by the learned counsel for the appellant is that there is an enormous delay in completing the investigation and submitting the final report. It was also contended that the prosecution failed to establish that the sample subjected to chemical analysis was drawn from the article seized from the appellant’s possession. In support of the said contention, it is pointed out that the prosecution failed to mark the forwarding note evidencing forwarding of the aforesaid article for chemical analysis in a tamper- proof condition. It is pointed out that instead of that, what is produced by the prosecution is a forwarding letter indicating the forwarding of the material objects to the Judicial First Class Magistrate Court. In such circumstances, learned counsel prays for interference in the order of conviction passed by the Sessions Cou