Alakandy Prabhakaran v. Sub Inspector of Police, Kuthupparamba & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **CRL.A.No.2387 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1023/2005 DATED 12-11-2007 OF ADDITIONAL SESSIONS COURT (ADHOC) 1, THALASSERY** ## **APPELLANT/ACCUSED:** **ALAKANDY PRABHAKARAN AGED 56 YEARS S/O. KUNHIRAMAN, THATTANTA PARAMBIL HOUSE, MANGATTIDAM, AMBILAD, KANNUR DISTRICT.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 SUB INSPECTOR OF POLICE KUTHUPARAMBA. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. S.L.SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2387 OF 2007** 2 ## **JUDGMENT** **Dated this the 26th day of March 2021** **The accused in S.C.No.1023/2005 on the file of the Additional Sessions Court, Adhoc 1, Thalassery has filed this appeal being aggrieved by the judgment dated 12.11.2007, whereby he has been found guilty of offence punishable under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of 1,00,000/- and in default of payment of₹ fine to undergo simple imprisonment for a further period of 15 days.** **2. The case of the prosecution is that on 27.01.2004 at about 5.15 p.m., the accused was found in possession of 5 litres of arrack. The prosecution examined PW1 to PW4 and produced and marked Exts.P1 to P8, before the court below. The material objects were not placed before the court. The court below** **CRL.A.No.2387 OF 2007** 3 **on the basis of the evidence on record found the accused guilty of the offence charged and imposed on him the sentence referred above.** **3. Heard Sri.Cibi Thomas, learned counsel on behalf of the appellant and Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the respondents.** **4. The counsel for the appellant submits that there are several infirmities in the prosecution case. Firstly, he pointed out that the offence was detected by the Sub Inspector of Police, Koothuparamba Police Station who has been examined as PW4. Even though the offence took place within the jurisdiction of the Koothuparamba Police Station, the investigation was conducted by PW3, who was the Sub Inspector of Police of the Kannavam Police Station. Learned counsel submits that the Investigating Officer did not have jurisdiction to investigate into the offence which has happened outside the jurisdiction and hence the entire investigation is without authority. Another** **CRL.A.No.2387 OF 2007** 4 **contention raised by the counsel is that there is absolutely no evidence on record regarding the production of the contraband articles before the court since no property list has been produced and marked in this case. In the absence of a property list, it is not possible to know the day on which the contraband articles and the samples were produced before the court and the person with whom the safe custody of such articles were entrusted with. I find considerable force in the contentions raised by the counsel for the appellant. This Court has in several judgments held that a Police Officer can exercise the power of an Excise Officer but the same can be exercised only within the area of his jurisdiction. In the light of the above legal position, PW3 would not have jurisdiction to investigate into the offence committed in the Koothuparamba range and the entire investigation is hence vitiated. So also, in Ext.P4 forwarding note, which has been produced and marked, it is seen that** **CRL.A.No.2387 OF 2007** 5 **the Officer who prepared it has not chosen to indicate the date on which it was prepared. The seal of the Court of the Magistrate on the forwarding note would indicate that the same was received in the court only on 26.02.2004, almost one month after the incident is said to have been committed. A covering letter has been attached to the forwarding note, wherein the Investigating Officer has stated that the sample has already been produced before the court. However, in the said letter also there is no indication as to when it was produced before the court. The forwarding note does not contain a counter signature of the Magistrate so as to indicate the date on which the Magistrate has counter signed the forwarding note and authorised the sending of the sample, if any, produced for chemical examination. The forwarding note also does not contain the name of the Officer with whom the sample has to be sent for chemical examination and the impression of the specimen seal used for sealing** **CRL.A.No.2387 OF 2007** 6 **the sample. Thus the forwarding note does not contain any of the details which are expected to be in the forwarding note. This Court has held in** _**Ravi v. State of Kerala (2018 (5) KHC 352)**_ **and in several other cases that the failure to place the impression of the specimen seal used for sealing the sample is fatal for the prosecution. So also in** _**Kumaran v. State of Kerala (2016 (4) KLT 718)**_ **this Court had indicated the necessity of the counter signature of the Magistrate and the date on which the counter signature is put so as to find out the actual date of despatch of the sample to the Chemical Examiner. In** _**Jayakumar v. State of Kerala (2018 KHC 3165)**_ **this Court has held that the forwarding note should contain the name of the Officer with whom the sample is forwarded to the Chemical Examiner and in the absence of such details, the Thondi Clerk should have been examined. On a perusal of Ext.P8 certificate issued by the Chemical Examiner, it is seen that the sample which was examined by the** **CRL.A.No.2387 OF 2007** 7 **Chemical Examiner was received from the Magistrate, Koothuparamba along with a reference letter dated 28.02.2004 and that it was received only on 28.12.2004 ie; 10 months after the said reference letter. There is absolutely nothing in evidence to show whether the sample was handed over to any particular officer for forwarding to the Chemical Examiner either on 26.02.2004, which is the date available on the forwarding note or on 28.02.2004, which is the letter said to have been addressed by the Judicial First Class Magistrate to the Chemical Examiner and if so, where exactly the sample was kept in safe custody till 28.12.2004, on which day it had reached the Chemical Examiner. In the above circumstances, it has to be held that the prosecution has miserably failed to establish that the very same sample which was taken at the scene of occurrence, had reached the Chemical Examiner in tamper proof condition.** **5. In the circumstances, the appellant is** **CRL.A.No.2387 OF 2007** 8 **entitled to succeed in this appeal. In the result, the judgment dated 12.11.2007 in S.C.No.1023/2005 on the file of the Additional Sessions Court, (Adhoc) I, Thalassery is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled.** **This appeal stands allowed.** **Sd/-** **T.R.RAVI, JUDGE** **Pn**