Kerala High Court
Sathyan @ Kunjan vs State Of Kerala on 18 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.1865 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942
CRL.A.No.1865 OF 2005
AGAINST THE JUDGMENT IN SC 367/2001 DATED 29-09-2005 OF
ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK COURT I),
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
SATHYAN @ KUNJAN
S/O PODIAN, CHARUVILA PUTHEN VEEDU,
PAZHAYAKUNNUMMEL VILLAGE,
CHIRAYINKIL TALUK.
BY ADVS.
SRI.M.DINESH
SRI.BASANT BALAJI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. B. JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1865 OF 2005 2
JUDGMENT
Dated this the 18th day of June 2020 The above appeal is filed by the accused in S.C.No.367/2001 on the file of the Additional District and Sessions Judge (Fast Track Court I), Thiruvananthapuram. The Excise Inspector, Chirayinkeezh Excise Range chargesheeted the case against the accused alleging the offence punishable under Section 8(1) and (2) of the Abkari Act.
2. The prosecution case is that on 5.5.2000 at 11.30 am. the accused was found in possession of 1½ liters of arrack in a black can having a capacity of 2½ liters on the side of the road leading to Adayamon from Kilimanoor Police Station junction in front of Chavaru Temple in Pazhayakunnumel Village. Hence it is alleged that the accused committed the offence.
3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P5 are the documents marked on the side of the prosecution. MO1 is the material object.
4. Ongoing through the evidence and the documents, the trial court found that the accused is guilty under Section CRL.A.No.1865 OF 2005 3 55(a) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that no forwarding note is produced in this case. On that reason itself, the accused is entitled to the benefit of doubt. Moreover, the counsel also submitted that no sample is taken from the spot by the detecting officer, and it was taken from the Court. The Court has no business to take sample from the contraband. On that ground also, the counsel submitted that he is entitled to the benefit of doubt.
7. The point to be decided in this case is whether the accused committed the offence under Section 55(a) of the Abkari Act.
8. Admittedly, the forwarding note is not produced in this case. 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 CRL.A.No.1865 OF 2005 4 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.
9. 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 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))."
10. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting CRL.A.No.1865 OF 2005 5 the accused.
11. Moreover, in this case, admittedly, no sample is taken from the contraband article by the detecting officer from the spot for the purpose of analysis. It seems that the sample was taken by the Court. In the analyst report, it is stated that a sample bottle was received. The Court has no business to take a sample from the contraband article. This point was considered by this Court in Smithesh v. State of Kerala (2019(2) KLT 974). Relevant paragraph of the above decision is extracted hereunder:
"7. Of the 18 cans produced in Court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. In Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans."
12. In the light of the above discussion, I think, the CRL.A.No.1865 OF 2005 6 appellant is entitled to be benefit of doubt.
Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 29.9.2005 in S.C.No.367/2001 on the file of the Additional District and Sessions Judge (Fast Track Court-I), Thiruvananthapuram is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab