JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C. No.1964/2001 on the file of the Additional Sessions Judge for trial of Abkari Act Cases, Neyyattinkara, in a prosecution under Section 58 of the Abkari Act.

2. Gist of the prosecution case is that, on 21.07.1997, at about 05.00 pm, CW1, the Excise Circle Inspector of Neyyattinkara Excise Range, found the appellant/accused in possession of a 750 ml bottle filled with illicit arrack, in contravention of the provisions of the Abkari Act and thereby, the appellant/accused committed the offence under the aforesaid provision of the Abkari Act.

3. Following investigation of the case, a final report was filed before the Judicial first Class Magistrate-II, Neyyattinkara, which was committed to the Sessions Court, Thiruvananthapuram, as the offence was exclusively triable by the Court of Sessions. The matter was originally made over to the Assistant Sessions Court, Neyyattinkara and later, case was transferred to the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara, for trial and disposal. Charges were framed against the accused alleging commission of offence under Section 58 of the Abkari Act. The appellant/accused pleaded not guilty and therefore, the prosecution led evidence by examining PWs 1 to 6, marking Exts.P1 to P8 and also identified the material object-MO1. Following closure of prosecution evidence, the appellant/accused was questioned under Section 313 of the Cr.P.C. She denied all incriminating materials appearing against her. Though she took up a plea that she was falsely implicated, the appellant/accused did not adduce any defence evidence.

4. On a consideration of the matter, the trial court convicted the appellant/accused for the offence under Section 58 of the Abkari Act and sentenced her to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months.

Set off as permissible in law under Section 428 of Cr.P.C was also allowed. 5. Learned counsel appearing for the appellant/accused submits that this appeal is liable to be allowed on short point. He submits that this is a case where the forwarding note through which the samples were forwarded for chemical analysis was neither produced nor marked in evidence before the trial court. He submits that it is the settled position of law that production and marking of a forwarding note with the sample of the seal affixed on the samples is a sine qua non for a successful prosecution under the provisions of the Abkari Act. He further submits that in the light of the law laid down by this Court in Gireesh V. State of Kerala [2019(4) KLT 79], the failure to produce and mark the forwarding note is fatal to the prosecution case.

6. I have heard the learned Public Prosecutor also.

7. This Court, considering the identical question as to whether the failure to produce and mark the forwarding note is fatal to the prosecution case, in Gireesh (supra), held as follows:-

“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by P.W.5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. 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 samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96)=2016 (1) KLD 311) and Gopalan v. State of Kerala(2016 (3) KLT SN

24(C.No.16)=2016(2)KLD 469).

15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to p