Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14TH DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 CRL.REV.PET NO. 2310 OF 2010 Against the judgment dated 31.5.2010 in Crl.Appeal No.182/2009 passed by the Additional Sessions Court/Special Judge for NDPS Act cases, Thodupuzha & Against the judgment dated 20.8.2009 in S.C.No.408/2007 passed by the Assistant Sessions Court, Kattappana REVISION PETITIONER/APPELLANT/ACCUSED: RAJAPPAN S/O KOCHUPAPPAN, THUPPANAMALAYIL HOUSE, ANAKKUZHY GANDHINAGAR COLONY, MATTUKATTA KARA, AYYAPPANCOIL VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.K.J.JOSEMON SRI.MATHEW SKARIA
RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT M K PUSHPALATHA-SR Public Prosecutor THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
ORDER
This Crl.R.P. has been filed challenging the judgment
dated 31.5.2010 in Crl.Appeal No.182/2009 passed by the Additional Sessions Court/Special Judge for NDPS Act cases, Thodupuzha (for short 'the appellate court') confirming the judgment dated 20.8.2009 in S.C.No.408/2007 passed by the Assistant Sessions Court, Kattappana (for short 'the trial court').
2. The revision petitioner faced trial for the offence punishable under Section 8(1) and (2) of the Abkari Act.
3. The prosecution case in short is that, on
16.7.2005, the revision petitioner was found in possession of 3 litres of arrack in contravention of the Abkari Act and thereby committed the aforesaid offence.
4. On receipt of the summons, the revision
petitioner appeared at the trial court. After hearing both sides, the trial court framed charge against the revision petitioner under Section 8(1) and (2) of the Abkari Act. ..3..
5. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P6 were marked. MO1 was identified. No defence evidence was adduced.
6. After trial, the trial court convicted the accused
under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for three months. In appeal, the appellate court confirmed the conviction, but modified the sentence passed by the trial court. The revision petitioner was sentenced to undergo simple imprisonment for three months and in default of payment of fine to suffer simple imprisonment for one month. Aggrieved by the judgments of conviction and sentence passed by both the courts below, this Crl.R.P. has been preferred.
7. I have heard Sri.Lijo Joseph, the learned counsel for the revision petitioner and ..4.. Smt.M.K.Pushpalatha, the learned Senior Public Prosecutor for the respondent.
8. The learned counsel for the revision petitioner
challenges the finding of guilty passed against the revision petitioner as illegal and unsustainable mainly on the ground that the seizure mahazar does not contain the seal. I find some merit in the said argument.
9. 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, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the
judgment that the nature of the seal used shall be
mentioned in the seizure mahazar.
10. A perusal of Ext.P2 mahazar would show that it
does not contain the sample seal or description of the seal used. For these reasons, I am of the view that the ..5.. conviction and sentence passed by the courts below cannot be sustained. In the result, this Crl.R.P. is allowed. The conviction and sentence passed by the courts below vide impugned judgments are set aside. The revision petitioner is found not guilty of the offence charged against him and accordingly he is acquitted. Sd/- DR.KAUSER EDAPPAGATH, JUDGE skj