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2020 DIGILAW 816 (KER)

Rajan, S/o. Nanu v. State Of Kerala

2020-09-30

P.V.KUNHIKRISHNAN

body2020
JUDGMENT : 1. The appellants are the accused in S.C No.787/2001 on the file of the Additional District & Sessions Judge (Adhoc), II, Kollam. Above case is charge sheeted by the Sub Inspector of Police, Paravoor against the appellants alleging offence punishable under Section 55(a) and (h) of the Kerala Abkari Act. 2. The prosecution case is that the accused was found in possession of arrack in MO 1 to MO 3 cannases. Hence it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P6 are the exhibits marked on the side of prosecution. MO 1 to MO 6 are the material objects. 4. After going through the evidence and documents in this case, the trial court found that the accused committed the offence under Section 8 (1) of the Kerala Abkari Act. Accordingly, the accused is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh. Aggrieved by the conviction and sentence, this Crl. Appeal is filed. 5. Heard. 6. Learned counsel for the appellants submitted that there is no forwarding note in this case. Moreover the learned counsel also submitted that PW.5 is the Investigating Officer. He is only an Assistant Sub Inspector of Police. He is not authorized to investigate the case. 7. Learned Public Prosecutor submits that there is oral and documentary evidence to prove the case. Learned Public Prosecutor also submits that there is nothing to interfere with the impugned judgment. 8. The point for consideration of this case whether the accused committed offence under Section 8(1) of the Kerala Abkari Act. 9. It is an admitted fact that forwarding note is not marked in this case. Importance of forwarding note is considered by this Court in several judgments. Forwarding note is a vital document in Abkari cases. The non production of the same is fatal to the prosecution. 10. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 11. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 11. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are Gireesh @ Manoj v. State of Kerala ( 2019(4) KLT 79 ), Vijayan @ Pattalam Vijayan and another v. State of Kerala ( 2018 (2) KHC 814 ) and Prakasan and another v. State of Kerala ( 2016 KHC 96 ). The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder: “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not CRL.A.No.1593 OF 2005 8 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 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).” 12. The seizure of the contraband in this case was on 20.07.1999. The sample reached the court only on 04.08.1999. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in Sukumaran v. State of Kerala ( 2019(3) KLT 920 ), Ravi v. State-Sub Inspector of Police, Meppadi ( 2018(5) KHC 352 ) and Vikraman v. State of Kerala ( 2018(1) KLT 822 ). Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 13. In the light of the above discussion, I think the appellants are entitled to the benefit of doubt. Hence this Crl. Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 26.07.2005 in S.C. No.7897/2001 on the file of the Additional District & Sessions Judge (Adhoc), II, Kollam is set aside. The accused is set at liberty and the bail bond if any, executed by him is cancelled.