Kerala High Court
Sreedharan vs State Of Kerala on 25 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.1193 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942
CRL.A.No.1193 OF 2005
AGAINST THE JUDGMENT IN SC 459/2003 DATED 18-06-2005 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
APPELLANT/ACCUSED:
SREEDHARAN,
S/O.NARAYANAN, POOKKULATHU HOUSE,
PALLIKUNNU KARA,
SANTHANPARA VILLAGE,
UDUMBANCHOLA.
BY ADV. SRI.PAULY MATHEW MURICKEN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.B. JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1193 OF 2005 2
JUDGMENT
Dated this the 25th day of June 2020 The above appeal is filed by the accused in S.C.No.459/2003 on the file of the Additional Sessions Judge, (Adhoc-II), Thodupuzha. The Excise Inspector, Udumbanchola filed a chargesheet against the accused alleging the offence punishable under Sections 8(1) and (2) of the Kerala Abkari Act.
2. The prosecution case is that on 19.11.1998 at 5.15 pm. the accused was found carrying 1 litre of illicit arrack in a 5 litre can through Pallikkunnu-Senapathy Road. The offence was detected by the Preventive Officer, Udumbanchola.
3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P9 are marked on the side of the prosecution. MO1 is the material object.
4. Going through the evidence and the documents, the trial court found that the accused committed the offence under Sections 8(1) and (2) of the Kerala Abkari Act. He is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the accused is directed to undergo rigorous imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal CRL.A.No.1193 OF 2005 3 is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that even if the entire prosecution case is accepted, no offence under Section 8(1) and (2) of the Kerala Abkari Act is made out in this case. The counsel also submitted that the sample was not taken from the spot by the detecting officer, and it was actually taken by the court, and the same is not permissible. The counsel also submitted that there is no seal in the forwarding note produced before the court.
7. The learned Public Prosecutor submitted that in the light of the oral and documentary evidence, the offence under Section 8(1) and (2) of the Kerala Abkari Act is made out, and there is nothing to interfere with the judgment of the trial court.
8. Altogether five witnesses were examined in this case. PW1 and PW2 are the alleged independent witnesses. They turned hostile to the prosecution. PW5, the Preventive Officer is the detecting officer in this case. PW3 and PW4 are the Excise Inspectors.
9. It is an admitted case that no sample is taken from the spot by the detecting officer in this case. Actually, the sample was taken by the court as per the request of the excise officials. CRL.A.No.1193 OF 2005 4 Such a procedure is not contemplated in the Abkari Act.
10. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) considered this point. This court observed that the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment 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. The 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. Any way, 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." [Emphasis supplied]
11. In the light of the above discussion, I think the appellant in this case is entitled benefit of doubt.
12. Moreover, in this case two forwarding notes are marked as Exts.P5 and P7. In Ext.P5 there is a seal affixed at the space for sample seal. It was prepared by the Excise Inspector of Udumbanchola. In Ext.P7, there is no seal affixed. Moreover, in Ext.P7, it is not stated that with whom the material object were CRL.A.No.1193 OF 2005 5 sent to the chemical analysis. Ext.P7 was forwarded to the analyst. As per Ext.P8 analyst report, the Chemical Analyst received the sample bottle on 18.4.2001. The sample was received by the analyst through one Excise Guard Sri.P.A.Radhakrishnan. He was not examined.
13. Similarly, there is no seal in the forwarding note. The importance of the seal in forwarding note is considered by this Court in Ravi. v. State - S.I. of Police, Meppadi [2018(5) KHC
352) and Smithesh v. State of Kerala [2019(2) KLT 974). The relevant portion of the judgment in Smithesh's case (supra) is extracted hereunder:
"8. This court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged."
14. In the light of the above authoritative judgments, it is clear that, the lack of seal in the forwarding note is fatal to the prosecution. If there is no seal in the forwarding note, there is no guarantee that the seized articles are reached in the hands of the Analyst. Therefore, for this simple reason itself, the accused is CRL.A.No.1193 OF 2005 6 entitled the benefit of doubt.
Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 18.6.2005 in S.C.No.459/2003 on the file of the Additional Sessions Judge (Adhoc II), Thodupuzha is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab