Balachandran s/o Subrahmanian v. State of Kerala

## **CR** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **CRL.A.No.2063 OF 2005** **AGAINST THE JUDGMENT DATED 29.11.2005 IN SC NO.339/2002 ON THE FILE OF THE PRINCIPAL ASSISTANT SESSIONS COURT, NORTH PARAVUR.** ## **APPELLANT/ACCUSED:** **BALACHANDRAN S/O SUBRAHAMANIAN,THAIKKADAN HOUSE, VELLANGALLUR KARA, VADAKKAKKARA VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.C.C.THOMAS (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.B.JAYASURYA, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2063 OF 2005 2** ## **J U D G M E N T** ## **Dated this the 19[th] day of June, 2020** … The above appeal is filed by the first accused in Sessions Case No.339 of 2002 on the file of the Principal Assistant Sessions Judge, North Paravur. The Circle Inspector of Excise, Aluva, has filed a charge sheet against the appellant herein and another alleging offences punishable under Sections 55(a) and 58 of the Abkari Act. The second accused was absconding, and hence, the trial court proceeded with the case of the first accused. 2. The prosecution case is that the accused were found in possession of illicit liquor (Indian made foreign liquor) and were transporting the same in a tanker lorry bearing registration No. KL-7Q/3096 through the National Highway-17 in contravention of the Abkari Act and Rules. It is alleged that they were transporting 144 cases of **CRL.APPEAL NO.2063 OF 2005 3** Mc Dowell Brandy, 38 cases of Honey Bee Brandy, 82 cases of Golconda Brandy, and 39 cases of Christian Brothers Brandy in the lorry without any valid license or papers. It was kept in three compartments of the tanker lorry. It was detected by the Excise Inspector, Aluva Range, and the place of seizure was in front of the Government Hospital, Moothakunnam, at 11.30 a.m. on 23.11.1998. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P8 are the exhibits marked on the side of the prosecution. MO1 to MO12 are the material objects. Ext.D1 is marked on the side of the defence. 4. Ongoing through the evidence and documents, the trial court found that the accused committed the offence under Sections 55(a) and 58 of the Abkari Act. They are sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,00,000/- each under Sections 55(a) and 58 of the Abkari Act. In default of payment of fine, the accused are directed to undergo simple **CRL.APPEAL NO.2063 OF 2005 4** imprisonment for one year each. The sentences are ordered to run concurrently. Aggrieved by the conviction and sentence, this appeal is filed by the first accused. 5. The point for consideration in this appeal is whether the offences under Sections 55(a) and 58 of the Abkari Act are made out against the appellant. 6. Altogether five witnesses were examined on the side of the prosecution. PW1 is the Detecting Officer. He is the Excise Inspector of Aluva Range. The alleged seizure of the contraband article is at Moothakunnam, which is admittedly within the jurisdiction of Paravur Excise Range. PW1 detected the offence. He arrested the accused and seized the contraband articles. He prepared Ext.P1 mahazar from the spot. Ext.P2 is the arrest memo of the first accused. He produced the accused and the thondi materials along with the vehicle before the Paravur Range office because the alleged seizure happened within Paravur Excise Range jurisdiction. PW2 and PW3 are independent **CRL.APPEAL NO.2063 OF 2005 5** witnesses examined in this case. They turned hostile to the prosecution. But, they admitted their signatures in Ext.P1 seizure mahazar. PW4 is the Excise Inspector of Aluva Excise Range. He deposed that the case was registered by charge witness No.11, the Excise Inspector of Paravur Excise Range. Charge witness, No.11 was not available for examination. Hence, Ext.P3 occurrence report prepared by charge witness No.11 was marked through PW4, the Excise Inspector, Aluva Range. Thondi list, in this case, was prepared by charge witness No.11. Ext.P4 is the thondi list. The same was also marked through PW4 because charge witness No.11 was not available for examination in court. Charge witness No.11 was on long leave during that period, and he was abroad. Charge witness No.11 prepared Ext.P5 forwarding note. That was also marked through PW4. Ext.P6 is the chemical analysis report, and the same was also marked through PW4, the Excise Inspector, Aluva Excise Range. PW4 admitted that the thondi articles were produced before the court as per **CRL.APPEAL NO.2063 OF 2005 6** Ext.P4 on 2.12.1998. According to PW4, he conducted part of the investigation. He took charge of the investigation in this case on 2.7.1999. 7. PW5 is the Circle Inspector of Excise Range, Aluva Circle. He investigated the case after PW4. He verified the charge and questioned witnesses. He submitted the final report. This is the evidence available in this case. 8. Heard the learned counsel for the appellant and the learned Public Prosecutor. 9. The learned counsel for the appellant raised three points in this case. The first point is that PW5, who is the Circle Inspector of Excise, Aluva is not an authorized officer to submit a final report against the accused because the seizure of the property was within the jurisdiction of North Paravur Excise Range. The second point raised by the counsel is that the seizure of the contraband was on 23.11.1998. The properties were produced before the court only on 2.12.1998. There is no explanation for the delay. **CRL.APPEAL NO.2063 OF 2005 7** The counsel also submitted that there is no seal in the forwarding note and that is vital in Abkari cases. 10. The learned Public Prosecutor supported the judgment of the trial court. The learned Public Prosecutor submitted that a huge quantity of Indian made foreign liquor was seized from the accused without any valid documents. The learned Public Prosecutor also argued that they were transporting these illicit liquor without any valid documents. Therefore, the court may not interfere with the judgment of the trial court on technical grounds. According to the learned Public Prosecutor, in the light of the evidence of PW1 and Exts.P1 to P8, it is _prima facie_ , proved that the accused was found in possession of a huge quantity of Indian made foreign liquor without any valid permit. Therefore, the learned Public Prosecutor contends that the trial court is justified in convicting and sentencing the accused. **CRL.APPEAL NO.2063 OF 2005 8** 11. It is an admitted case that the arrest of the accused and seizure of the contraband article was within the limits of North Paravur Excise Range. Ext.P8 is an authorisation issued by the Assistant Excise Commissioner, Ernakulam, authorising PW1 to conduct special checking at Moothakunnam Toll. The seizure of the contraband articles was near Moothakunnam. In Ext.P8, it is clearly stated that the above order is passed for curbing the Indian made foreign liquor seconds and other illicit articles effectively. The counsel for the appellant submitted that there is no dispute that the officer of the Excise can arrest and seize any contraband article from any place. Section 4 of the Abkari Act says that, the Government may by notification in the Gazette, appoint an officer to control the administration of the Abkari Department, may appoint any person other than the Commissioner to perform all or any of his duties, may withdraw Abkari powers from the Commissioner or other officer appointed above, may appoint an officer to take action under Section 40 **CRL.APPEAL NO.2063 OF 2005 9** to 53 of the Abkari Act etc. In exercise of the powers conferred by Section 4 of the Abkari Act 1 of 1077, the Government as per notification issued under Go(Ms)No.356/67/Rev.(S.R.O.No.234/67) appointed certain officers to exercise the powers and to perform the duties specified with their jurisdiction over a specific area. Relevant portions of SRO No.234/67 is extracted hereunder. **Officers and their powers Local jurisdiction and duties** (1) (2) **==> picture [407 x 274] intentionally omitted <==** **----- Start of picture text -----**<br> 1. xxx xxx xxx xxx xxx xxx<br>2. xxx xxx xxx xxx xxx xxx<br>3. xxx xxx xxx xxx xxx xxx<br>4. xxx xxx xxx xxx xxx xxx<br>5. xxx xxx xxx xxx xxx xxx<br>6. xxx xxx xxx xxx xxx xxx<br>7. xxx xxx xxx xxx xxx xxx<br>8. All officers of the Within the areas<br>Excise Department not below for which they are<br>the rank of Excise appointed.<br>Inspectors – to perform the<br>acts and duties mentioned in<br>Sections 40 to 53 inclusive<br>of the Act.<br>**----- End of picture text -----**<br> **CRL.APPEAL NO.2063 OF 2005 10** **==> picture [407 x 673] intentionally omitted <==** **----- Start of picture text -----**<br> 9. The Commissioner of The Commissioner of<br>Excise, the Joint Excise, the Joint<br>Commissioner of Excise, Commissioner of Excise<br>The Deputy Commissioners of throughout the State<br>Excise and all Assistant and Deputy Commissioners<br>Excise Commissioners to be of Excise and Assistant<br>Abkari Officers under their Excise Commissioners<br>respective denominations for within the area for<br>the purpose of Sections which they are<br>31.32,34,35, 38, 39, 53, 59, appointed.<br>67 and 67A of the Act and to<br>Exercise all the powers and<br>to discharge all the duties<br>conferred and imposed on<br>Abkari Officers in the<br>Sections aforesaid.<br>10. Circle Inspectors of Within their respective<br>Excise, Excise Inspectors jurisdiction<br>attached to the Circles and<br>Excise Inspectors in charge<br>of Ranges to be Abkari<br>Officers under their<br>respective denominations for<br>the purposes of Section<br>31,32,34,35,38,39,53 and 59<br>of the Act and to exercise<br>all the powers and to<br>discharge all the duties<br>conferred and imposed on<br>Abkari Officers in the<br>Sections aforesaid.<br>**----- End of picture text -----**<br> **CRL.APPEAL NO.2063 OF 2005 11** **==> picture [407 x 594] intentionally omitted <==** **----- Start of picture text -----**<br> 11. Excise Inspectors Within the range in<br>in charge of Distilleries, which the distillery,<br>Warehouses, Breweries, warehouse,brewery,winery<br>Wineries etc., mentioned in etc. is situated.<br>Section 14(d)-to be Abkari<br>Officers under their<br>respective denominations for<br>the purposes of Sections<br>31,32,33,34,35,38,39,53 and<br>59 of the Act and to<br>exercise all the duties<br>conferred and imposed on<br>Abkari Officers in the<br>sections aforesaid.<br>12. Preventive Officers of Within their respective<br>the Excise Department on jurisdiction<br>duty within the Kerala<br>State-to be Abkari Officers<br>under their respective<br>denominations for the<br>purposes of Sections<br>31,32,34,35,38,39,53 and 69<br>of the Act and to exercise<br>all the powers and to<br>discharge all the duties<br>conferred and imposed on<br>Abakri Officers in the<br>sections aforesaid.<br>**----- End of picture text -----**<br> **CRL.APPEAL NO.2063 OF 2005 12** ||13. Excise Guard of the<br>Excise Department on duty<br>within the Kerala State<br>to be Abkari Officers<br>under<br>their<br>respective<br>denominations<br>for<br>the<br>purpose of Sections 34, 35,<br>38, 39, 53 and 59 of the Act<br>and to exercise all the<br>powers and to discharge all<br>the duties conferred and<br>imposed on Abkari officers<br>in the sections aforesaid.|Within<br>the<br>areas<br>for which they are<br>appointed.|| |---|---|---|---| _Provided that, with reference to Section 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction._ 12. A reading of the proviso to the above notification, it is clear that, concerning Sections **==> picture [442 x 12] intentionally omitted <==** jurisdiction within the Kerala State for the Abkari and other Department Officers named therein, but all persons arrested and all seizures made thereunder **CRL.APPEAL NO.2063 OF 2005 13** shall without delay be made over to the Excise Officer possessing local jurisdiction. Section 31 of the Abkari Act deals with Abkari and Police officers' power to search houses, etc. without a warrant. Section 34 of the Act deals with the power to arrest without warrant in any public place, thoroughfare or open space other than a dwelling house. Actually, Ext.P8 is issued only in accordance with the above proviso to the notification. In Ext.P8, the power is given to Aluva Circle, Aluva Range, and Angamaly Range of the Excise Department for conducting a special check at Moothakunnam toll for curbing effectively Indian made foreign liquor seconds and other illicit articles. Accordingly, PW1 conducted the detection and arrest of the accused in this case. After arrest and seizure, he produced the accused and the contraband articles along with the vehicle before the Excise Officer having local jurisdiction over Moothakunnam Toll, and he is charge witness No.11 in this case. There is no defect in the arrest, seizure of the contraband article by PW1 from Moothakunnam toll **CRL.APPEAL NO.2063 OF 2005 14** junction, even though, it is not an area within the jurisdiction of PW1 in the light of the proviso to S.R.O.No.234/67. Therefore, the arrest and seizure of the property are proved in this case with the evidence of PW1. Of course, PW2 and PW3 turned hostile to the prosecution. But, they admitted their signature in Ext.P1 seizure mahazar. Simply because, the independent witnesses turned hostile after admitting their signature in the seizure mahazar, the entire arrest and seizure will not vitiate. Therefore, here is a case where the prosecution is able to prove that as per Ext.P1 seizure mahazar, PW1 seized the article mentioned in it along with the appellant and his vehicle. It is also proved that PW1 produced the accused, seized material along with the vehicle before the jurisdictional Excise Range Officer, who is charge witness No.11. 13. When the accused and articles were produced before the jurisdictional Excise Inspector, he conducted the preliminary investigation. He prepared Ext.P3 occurrence report, Ext.P4 list of thondi and Ext.P5 forwarding note. After that, the **CRL.APPEAL NO.2063 OF 2005 15** investigation is conducted by PW4, the Excise Inspector, Aluva Excise Range. He did further investigation after the investigation conducted by charge witness No.11. Charge witness No.11 was not available for examination because he was on long leave. Hence, Exts.P3 to P5 were marked through PW4. Thereafter, the charge was verified and final report was filed by PW5, who is the Circle Inspector of Aluva Excise Range. The contention of the appellant is that, the Excise Inspector or the Circle Inspector of Aluva Excise Range have no jurisdiction to investigate this case and file the final report before the court because there was no authorization to them under Section 4 of the Abkari Act. I think there is some force in the contention of the appellant. Admittedly, S.R.O.No.234/67 is applicable during the period in which the arrest, seizure and the investigation in this case happened. S.R.O. No. 234/57 was superseded only on 8.5.2009 as per S.R.O. No.361/2009. 14. S.R.O.No.234/67, which is extracted above, will show that the investigation and final report **CRL.APPEAL NO.2063 OF 2005 16** under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. ‘Abkari Officer’ is defined as per Section 3(2) of the Abkari Act which is extracted hereunder: _“Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”_ S.R.O. No.234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53,59,67 and 67A of the Abkari Act and to discharge of the duties conferred **CRL.APPEAL NO.2063 OF 2005 17** and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the Sections aforesaid within their respective jurisdiction. Similarly, clause 11,12 and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed. 15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 **CRL.APPEAL NO.2063 OF 2005 18** only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Ofcourse, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction. 16. Admittedly, in this case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer **CRL.APPEAL NO.2063 OF 2005 19** filed the final report under Section 50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer. **==> picture [409 x 12] intentionally omitted <==** **==> picture [446 x 13] intentionally omitted <==** relevant portion of the above judgment is extracted hereunder: _“15. S.31 of the Act deals with search in houses and other buildings, and S.34 of the Act deals with seizure or arrest generally. Detection can be made by the competent officers only within their jurisdiction. The proviso to the Government Order says otherwise that the said limitation prescribed by way of jurisdictional limits under the Government Order will not apply to detection made under S.31 or S.34 of the Act. If such a proviso is not there, or if such a protection is not given to detections made by other officers, law breakers can very conveniently escape by the time the right officer of the concerned Range or Circle turns up or rushes to detect the offence. That is why the Government added a proviso to the Government Order, that as regards detection under S.31 or S.34 of the Act, the limit of jurisdiction shall not apply. As regards the_ **CRL.APPEAL NO.2063 OF 2005 20** _other powers like the power to register crimes, or the power to conduct investigation, there is no such protection or relaxation. The provision is never meant to give authority to officers not covered by the Government Order. Only those categories of officers specifically empowered and covered by the Government notification issued under S.4 of the Act can claim the benefit of the proviso, and only those categories can detect offences under S.31 or 34 of the Act beyond their territorial limits. Such an exception under the proviso, or such a relaxation brought with a particular object, cannot be extended to other categories who are not authorized by the Government under S.4 of the Act. So, I find that the Circle Inspector of Excise who detected the offence in this case cannot find any excuse or justification under the proviso to the Government notification issued in 1967 as SRO 234/1967. I find that he was incompetent to make detection, and that investigation was also conducted by another incompetent officer. The final report was also submitted by the very same incompetent officer. The benefit of these illegalities and infirmities must necessarily go to the accused.”_ ## **-** Similarly in **Ravi v. State S.I. of Police, Meppadi** [2018(5) KHC 352], this court considered this point. The relevant portion of the above judgment is extracted hereunder: **CRL.APPEAL NO.2063 OF 2005 21** _“14. In this case, PW4 is the Sub Inspector of Police, Meppadi. Definitely, he is the “Abkari Officer” within the territorial jurisdiction of the Meppadi Police Station. PW3 is the Sub Inspector of Police, Kalpetta, who has investigated the case as per the direction of the S.I. of Police, Meppadi, who has no power to designate PW3 as the Abkari Officer to investigate the offence committed within the limits of the Meppadi Police Station. Here, PW3, the Abkari Officer of the Kalpetta Police Station, has conducted investigation of the abkari offence allegedly committed within the territorial limits of Meppadi Police Station. He has no power to exercise the power of the Abkari Officer outside the limit of the Kalpetta Police Station. There is no provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to Abkari Officers outside the jurisdictional limit. Needless to say that the Government of Kerala alone is empowered to appoint an Abkari Officer.”_ **==> picture [412 x 13] intentionally omitted <==** [2017(1) KHC 120], this court considered this point in detail. The relevant portions of the judgment are extracted hereunder. _“19. S.44 of the Abkari Act provides that any Abkari Officer holding an inquiry may summon any person to appear before himself to give_ **CRL.APPEAL NO.2063 OF 2005 22** _evidence on such inquiry or to produce any document relevant thereto which may be in the possession or control of such person. S.45 of the Abkari Act provides that every summons issued under S.44 shall state whether the person summoned is required to give evidence or to produce the documents, or both, and shall require him to appear before the said officer at a stated time and place. S.46, Abkari Act, states that a person so summoned shall attend as required and shall answer all questions relating to such inquiry put to him by the said officer. It is also provided therein that the answers shall be reduced into writing and shall be signed by such officer. S.44 to 46 make it clear that Abkari Officers alone have powers to investigate into abkari offences. PW6 had powers to conduct the investigation only if he was an Abkari Officer. ‘Abkari Officer’ as defined in S.3(2) of Abkari Act means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S.4 or 5. Under S.4 the Government may, by notification in the gazette, appoint officers to perform the act and duties mentioned in S.40 to 53. In exercise of the powers confirmed by S.4, the Government of Kerala issued a notification, namely, GO(P) No.69/96/TD dated 29/03/1996. The notification was published in the gazette as SRO No. 321/96. As per the notification the Government of Kerala had appointed all Police Officers of and above_ **CRL.APPEAL NO.2063 OF 2005 23** _the rank of Sub Inspector of Police in charge of law and order and working in the central executive branch of the police department to be Abkari Officers under their respective jurisdiction for the purposes of S.31 to 35,38,40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the sections aforesaid (underscored to supply emphasis). The appointment of Police Officers as per the notification as Abkari Officers is only to exercise the powers within their respective jurisdiction. Needless to say that the ‘jurisdiction’ referred to in the notification is the territorial jurisdiction._ _20. S.3(2),S.4 and S.44 to 46 of the Abkari Act are very clear. The notification referred to above is also very clear. Everybody cannot conduct investigation into abkari offences. Only an Abkari Officer can conduct such an investigation. Certain Police Officers have been appointed Abkari Officers as per the notification. A Police Officer appointed an Abkari Officer as per the notification is not an Abkari Officer everywhere. He is an Abkari Officer only within his territorial jurisdiction. He is not an Abkari Officer outside such jurisdiction. PW6 as the Sub Inspector of Thaliparamba Police Station was not an Abkari Officer within the limits of the Payangadi Police Station. PW6 had no powers to exercise the_ **CRL.APPEAL NO.2063 OF 2005 24** _jurisdiction of an Abkari Officer outside the limits of his Police Station. But he conducted investigation into an abkari offence allegedly committed within the limits of the Payangadi Police Station. He did it without jurisdiction. He did it as instructed by the Inspector of Police of Thaliparamba circle. The Circle Inspector had no jurisdiction to confer jurisdiction on PW6 to conduct the investigation. The Government of Kerala alone can appoint an Abkari Officer. The Circle Inspector himself should have conducted the investigation. The question is not whether any prejudice was caused to the accused. The question is one touching the jurisdiction. The accused is entitled to get acquittal on this ground also._ _21. There are reported decisions on this point too. The decisions are (i) Rajappan v. State of Kerala, 2016(3) KHC 356: 2016(2) KLD 46: 2016(2)KLJ 784: 2016(3) KLT SN 40: ILR 2016 (4)Ker.174(ii) Saji @ Kochumon v. State of Kerala, 2010(3)KHC 259: 2010(3)KLT 471 and (iii) Narayanankutty v. State of Kerala, 2015(1)KHC 702: 2015(1)KLD 379: 2015(1) KLJ 849: ILR 2015 (2)Ker.86: 2015(2)KLT SN 25.”_ 19. In the light of the above authoritative judgments, taking cognizance of the final report filed by an incompetent officer is unsustainable. It will go to the root of the case. For this simple **CRL.APPEAL NO.2063 OF 2005 25** reason, the appellant, in this case, is entitled acquittal. 20. In addition to that, the counsel for the appellant submitted that there is no seal in Ext.P5 forwarding note. A perusal of the forwarding note, it is clear that there is no seal affixed in the forwarding note. There is a purpose in affixing the seal in the forwarding note. If the specimen seal is not affixed in the forwarding note, the prosecution cannot succeed because the links starting from the seizure till it reaches in the hands of the Analyst could not be proved without there is seal in the forwarding note. This is explained 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_ **CRL.APPEAL NO.2063 OF 2005 26** _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."_ 21. In addition to this, the properties, in this case, were seized on 23.11.1998. The contraband articles were produced before the court only on 2.12.1998. There is no acceptable explanation from the side of the prosecution to prove the delay of 10 days in producing the contraband before the court. If there is unexplained delay in producing the contraband article before the court, that is fatal to the prosecution. 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_ **CRL.APPEAL NO.2063 OF 2005 27** _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. 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."_ Since there is no explanation for not producing the contraband article in this case immediately after seizure before the court, the accused is entitled to the benefit of the doubt on this ground also. 22. In the light of the above discussions, I think, the appellant, in this case, is entitled the benefit of doubt. **CRL.APPEAL NO.2063 OF 2005 28** Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 29.11.2005 in Sessions Case No.339 of 2002 on the file of the Principal Assistant Sessions Judge, North Paravur is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**