Anish, S/o. Sadasivan v. State of Kerala

CRL.A.No.1288 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.1288 OF 2005** **AGAINST THE JUDGMENT IN SC 697/2004 DATED 13-06-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **ANISH, S/O.SADASIVAN, PETTUPARAYIL HOUSE, THOPRAMKUDY KARA, VATHIKKUDY VILLAGE.** **BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **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.1288 OF 2005 2 ## **JUDGMENT** ## **Dated this the 25th day of June 2020** The above appeal is filed by the 1[st] accused in S.C.No.697/2004 on the file of the Additional Sessions Judge (Adhoc II), Thodupuzha. The Sub Inspector of Police, Murickassery filed chargesheet against the appellant and another alleging the offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that on 29.3.2003 at 10.45 pm. accused Nos.1 and 2 were found carrying arrack in a 10 litre can in Jeep KRQ 673 driven by the 1[st] accused. The arrack carried in the can belong to accused No.2. The vehicle was intercepted by CW9, Assistant Sub Inspector of Police, Murickassery, in front of Mariya Gorothy L.P School in the Thopramkudy-Prakash Road. Accused No.2 ran away from the jeep. Accused No.1 was arrested, and the arrack carried in the jeep were seized under Ext.P1 mahazar. On reaching the Police Station CW9, the Assistant Sub Inspector registered Crime No.42/2003. Accused No.1 was produced before the court and later PW6 conducted investigation and PW7 submitted CRL.A.No.1288 OF 2005 3 chargesheet. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P6 are the documents marked on the side of the prosecution. MO1 is the material objects. 4. Going through the evidence and the documents, the trial court found that the 2[nd] accused is not guilty, and hence he was acquitted. The first accused was convicted under Section 8(1) and (2) of the Kerala Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for three months. Aggrieved by the conviction and sentence, the first accused in the case, who is the appellant herein filed the present appeal. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that the entire prosecution, in this case, is vitiated because the case was detected, and the accused was arrested by CW9, the Assistant Sub Inspector. The counsel submitted that the Assistant Sub Inspector is not an authorised officer as per the Abkari Act. 7. The learned Public Prosecutor submitted that there is CRL.A.No.1288 OF 2005 4 oral and documentary evidence to prove the offence under Section 55(a) of the Kerala Abkari Act against the appellant. The learned Public Prosecutor submitted that this court may not interfere with the conviction and sentence on technical grounds. 8. After hearing both sides, the point for consideration in this appeal is whether the accused committed the offence under Section 8(1) and (2) of the Kerala Abkari Act. 9. Altogether 7 witnesses were examined in this case by the prosecution. PW1 and PW2 are the alleged independent witnesses. They turned hostile to the prosecution. PW3 was examined to prove the scene mahazar. PW4 and PW5 are the Police Constables who accompanied CW9 at the time of search and seizure in this case. CW9, the Assistant Sub Inspector, who is the detecting officer was not examined because at the time of trial he was no more. PW6 is the Circle Inspector who conducted investigation in this case. PW7 is the Sub Inspector, who filed the final report. 10. Admittedly, the Assistant Sub Inspector conducted search, arrest, and seizure in this case. Whether the Assistant Sub Inspector is authorised for the same in an abkari case was considered by this court in several judgments. In **Omana v. State of Kerala (2015 KHC 1000)** , it is held that if detection, CRL.A.No.1288 OF 2005 5 arrest, seizure and investigation in an abkari case is conducted by the Assistant Sub Inspector, the same will vitiate the trial. Relevant portion of the judgment is extracted hereunder: "14. Further in this case it is seen from the evidence that the detection, arrest, seizure and investigation etc, were done by the Assistant Sub Inspector of Police who is not an Abkari Officer empowered to arrest and effect seizure and conduct investigation under S.34 of the Abkari Act. The Assistant Sub Inspectors of Police were not authorised as Abkari Officers to exercise the powers of Abkari Officer under the Act. The court below had come to the conclusion that since the Assistant Sub Inspectors were also vested with the power under S.4 and S.5 of the Abkari Act, though they are not covered by the notification they can detect and arrest and effect seizure in Abkari offences. But that was found to be not correct in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157), in which it was observed that the Assistant Sub Inspector of Police is not an authorised officer empowered to detect and investigate an offence under the Abkari Act as he was not covered by the notifications issued by the Government in this regard, viz, SRO 321/1996. Further in this case there is no document produced on the side of the prosecution to prove that PW5 was in charge of the Police Station in the absence of PW6, getting the powers of the Station House Officer to detect the crime. Such an evidence is also not available in this case. Further the dictum laid down in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157] was approved by the Division Bench of this Court in Subash v. State of Kerala [2008(2) KHC 703 : 2008(2) KLT 1047 : 2008(2) KLD 67]. So merely because the investigation was verified and final report was filed by PW6 the Abkari Officer will not validate the act of seizure and arrest made by PW5 the Assistant Sub Inspector of Police who is not an Abkari Officer and as such no conviction can be based on such arrest and seizure. If seizure is found to be done by a person who is not to empowered to effect seizure, then the seizure is bad in law, and no conviction can be based on such seizure made by an incompetent person." The same point was considered by this Court in **Subash v.** CRL.A.No.1288 OF 2005 6 **State of Kerala (2008(2) KHC 703), Biju and others v. State of Kerala (2011(1) KHC 518)** and **Chandrababu v. State of Kerala (2016(2) KLT 842)** . 11. Moreover, the forwarding note is not marked 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. Forwarding note is one of the links to prove the prosecution case in abkari cases. 12. 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 CRL.A.No.1288 OF 2005 7 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)).” 13. 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 the accused. 14. In addition to that the property was produced before the court only on 31.3.2003. The alleged seizure was on 29.3.2003. 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. 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. CRL.A.No.1288 OF 2005 8 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." 15. In the light of the above discussion, the conviction and sentence against the appellant are unsustainable. Hence this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 13.6.2005 in S.C.No.697/2004 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**