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2016 DIGILAW 369 (KER)

Gopalan v. State of Kerala

2016-04-01

B.SUDHEENDRA KUMAR

body2016
ORDER : The accused in S.C. No. 456 of 2001 on the files of the Assistant Sessions Court, Mavelikkara, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 8(2) and 55(a) of the Abkari Act. 2. Heard both sides. 3. The prosecution allegation is that on 5.5.1998 at 5.30 p.m., the revision petitioner was found in possession of 8 litres of illicit arrack in contravention of the provisions of the Abkari Act. 4. Before the trial court, PW1 to PW6 were examined and Exts. P1 to Ext.P5 were marked for the prosecution, besides identifying MO1. No evidence was adduced on the side of the revision petitioner. 5. The learned counsel for the revision petitioner has argued that since no forwarding note was marked in this case, the revision petitioner is entitled to benefit of doubt. The learned counsel relied on the decision of this Court in Prakasan and Another v. State of Kerala 2016 (1) KLD 311 ). In Prakasan (supra), the Court held thus:- “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If it was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 5. In this case, no forwarding note was marked before the court. No forwarding note is also available before the court. In this case, no forwarding note was marked before the court. No forwarding note is also available before the court. There is also no evidence before the court that any forwarding note was prepared and produced before the court by the Excise Officials. Since no forwarding note is available before the court, the prosecution could not establish the link evidence connecting the revision petitioner with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to benefit of doubt. 6. It is also to be noted that the incident in this case was on 5.5.1998. However, the investigation was completed and the final report was filed before the court only on 13.2.2000. This Court in Krishnan H. v. State 2015 (1) KHC 822 ) held that the long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution case. In this case, there was long delay in conducting the investigation. No explanation had been given by the prosecution as to why there was delay in conducting the investigation. In the said circumstances, the delay in conducting the investigation is also fatal to the prosecution in this case, as held in Krishnan (supra). 7. The above vital aspects were not considered by the courts below while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. 8. In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Sections 8(2) and 55(a) of the Abkari Act and the revision petitioner is acquitted for the said offences. The bail bond of the revision petitioner stands cancelled and the revision petitioner is set at liberty.