Ashokan s/o Janardhanan v. State of Kerala

# **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.723 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 342/2000 DATED 22-03-2005 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **ASHOKAN S/O. JANARDHANAN, KANJIRAMVILA VEEDU, MANIYAR WARD, PUNALUR VILLAGE.** **BY ADVS. SRI.PREMCHAND R.NAIR SRI.VARGHESE.J.PUNNACHALIL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, PUNALUR, REPRESENTED, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **SR.PP. 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.723 OF 2005 2 ## **JUDGMENT** ## **Dated this the 16th day of June 2020** The above appeal is filed by the accused in S.C No.342/2000 on the file of the Special Court for Abkari Act Cases, Kottarakkara. The case is charge sheeted against the accused by the Sub Inspector of Police, Punalur alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 29.11.1997, when the Sub Inspector of Punalur Police Station was conducting law and order petrol duty along with his party at 5.p.m, the accused was found in possession of two liters of Arack in a kannas having the capacity of five liters at the place of occurrence. Thus, it is alleged that the accused committed the offence under Section 55(a) of the Abkari Act. CRL.A.No.723 OF 2005 3 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P4, M.O.1 to M.O.3 are material objects. Ongoing through the evidence and documents, the Trial Court found that the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo simple imprisonment for two years and pay a fine of Rs.1,00,000/- (one lakh). In default of payment of fine, the accused is directed to undergo simple imprisonment for six months. Aggrieved by the above said conviction and sentence, this criminal appeal is filed. 4. Heard the counsel for the appellant and Public Prosecutor. The counsel for the appellant submitted that this is a case in which the accused is entitled to the benefit of the doubt for the simple reason that forwarding note is not produced. If the CRL.A.No.723 OF 2005 4 forwarding note is not produced, the counsel submitted that, it could be presumed that the prosecution has not proved all the links starting from the seizure of the property till it reaches in the hand of the analyst. Counsel also submitted that, even though the seizure of the contraband articles, in this case, was on 29.11.1997, the same was produced before the Court only on 2.12.1997. Thereafter, the contraband was received by the analyst only on 29.5.1998. There is no explanation from the prosecution regarding the delay in producing the articles before the Court. For this reason, also the accused is entitled to the benefit of the doubt; it is contended. 5. Public Prosecutor submits that, in the light of the oral and documentary evidence, the prosecution established the offence CRL.A.No.723 OF 2005 5 alleged. There is nothing to interfere with the finding of the trial court. 6. After hearing both sides, the points to be considered is, whether the accused committed the offence under Section 55 (a) of the Abkari Act. 7. Admittedly, the forwarding note is not produced in this case. In Abkari cases, the forwarding note is important because, in the forwarding note, the seal used by the detecting officer will be affixed. The importance of forwarding note in Abkari cases are considered by this Court in several decisions ( **Gireesh @ Manoj v. state of Kerala (2019 (4) KLT 79; Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KLT** **814)** in Gireesh alias Manoj (supra) this Court considered this point in paragraph 14 which is extracted hereunder; CRL.A.No.723 OF 2005 6 “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).” 8. In the light of the above judgment, the accused, in this case, is entitled to the benefit of the doubt. Moreover, the seizure of the property was on 29.11.1997. The contraband articles are produced before the Court only on 2.12.1997. There is no explanation from the prosecution regarding the delay in producing the articles. This Court in **Ravi. v. State - S.I.of Police, Meppadi [2018 (5) KHC 352] and in Vikraman v. State of Kerala [2018 (1) KLT 822]; Sukumaran v. State of Kerala [2019 (3)** CRL.A.No.723 OF 2005 7 **KLT 920] and Ravi. v. State of Kerala [2011** **(3) KLT 353]** considered this point. The relevant portion of the judgment in **Ravi v.** **State – S.I of Police, Meppadi 2018 (5) KHC** **352** (mentioned 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 instance case, there is a delay of four days in producing the contraband articles before the Court. 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." 9. In the light of the above dictum, the accused, in this case, is entitled to the benefit of the doubt on this ground also. There is no explanation from the prosecution CRL.A.No.723 OF 2005 8 for the delay in producing the articles before the Court. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 22.3.2005 in SC No.342/2000 on the file of the Special Court for Abkari Cases, Kottarakkara is set aside. The appellant is set at liberty. Bail bond, if any, executed by him is canceled. **Sd/P.V.KUNHIKRISHNAN JUDGE** **Sn** **//TRUE COPY// PA TO JUDGE**