Kerala High Court
Vasantha @ Molly vs State Of Kerala on 16 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.2048 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942
CRL.A.No.2048 OF 2005
AGAINST THE JUDGMENT IN SC 921/2001 OF THE ADDITIONAL DISTRICT &
SESSIONS JUDGE (FAST TRACK COURT I), THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
VASANTHA @ MOLLY,
D/O. BHAVANI, CHERUVILA PUTHEN VEEDU,
VELUTHAPARA, NELLANADU VILLAGE,
ATTINGAL.
BY ADV. SRI.G.SUDHEER
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SR.PUBLIC PROSECUTOR B. JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2048 OF 2005 2
JUDGMENT
Dated this the 16th day of June 2020 The above appeal is filed by the accused in S.C.No.921/2001 on the file of the Additional District and Sessions Judge (Fast Track Court) I, Thiruvananthapuram. The accused is chargesheeted by the Excise Inspector, Vamanapuram Range alleging the offence punishable under Section 58 of the Abkari Act.
2. The prosecution case is that on 7.12.1998 at 10 am, the accused was found in possession of 2 liters of arrack in MO1 black plastic can have the capacity of 5 liters at the road leading to Nellanadu from Vayanasala Junction and thereby committed an offence alleged.
3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P5 are marked on the side of the prosecution. MO1 is the material object.
4. On going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for one year and CRL.A.No.2048 OF 2005 3 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 marked in this case. He also submitted that the detecting officer had not taken any sample from the spot. It is the court had taken sample from the contraband articles based on the requisition submitted by PW6. According to the counsel, the court has no business to take sample from the contraband article.
7. After hearing both sides, the point to be decided 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 to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. CRL.A.No.2048 OF 2005 4 Forwarding note is one of the links to prove the prosecution case in abkari cases. Admittedly, in this case forwarding note is not produced.
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))."
Hence the accused is entitled benefit of doubt for the reason that, the forwarding note is not produced and marked in this case.
10. Admittedly in this case, the detecting officer has CRL.A.No.2048 OF 2005 5 not taken any sample from the spot. He seized the entire contraband and sealed the same from the spot. The court, based on the requisition, has taken sample from the contraband article. This Court deprecated such a procedure. In Smithesh v. State of Kerala (2019(2) KLT 974), this Court observed that the Magistrate had no business at all to collect any sample from the property produced before the court. 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. 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. 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."
Hence the procedure adopted in this case for taking sample is also illegal. On this ground also the appellant is entitled to be benefit of doubt.
11. In the light of the discussion made as above, I think CRL.A.No.2048 OF 2005 6 the accused is entitled to the benefit of the doubt.
Hence this Criminal Appeal is allowed. The conviction and sentence imposed by the Additional District and Sessions Judge (Fast Track Court I), Thiruvananthapuram in S.C.No.921/2001 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