BHAGIRATHI AMMA SAJEEV MANDIRAM v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **CRL.A.No.1691 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 975/2001 DATED 29-08-2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, TRIVANDRUM** ## **APPELLANT/S:** **BHAGIRATHI AMMA SAJEEV MANDIRAM, ETTIMUKKU, MADAVOORKONAM, ANAKUDI MURI, PONGODU VILLAGE.** **BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENT/S:** **STATE OF KERALA REP.BY BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT.MAYA.M.N., PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1691 of 2005 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.1691 of 2005 =================== Dated this the 25[th] day of September, 2020** ## **J U D G M E N T** The appellant is the accused in S. C. No. 975/2001 on the file of Additional Sessions Judge, Fast Track Adhoc-II, Thiruvanathapuram. 2. The above case is charge sheeted by the Sub Inspector of Police, Pangodu against the appellant alleging offences punishable under Section 55 (a) and (i) of the Kerala Abkari Act. 3. The prosecution case is that, on 18.01.1999, PW5, Sub Inspector of Police, received reliable information that arrack is stored in the property of One Bhageerathi residing at Ettimukku for the purpose of sale and when they reached there with police party, the above said Bhageerathi was present there. On inspection of the residential compound two white can having a capacity of 5 liters each and a bottle Crl.A. No.1691 of 2005 3 having capacity of one liter was found in a plantain pit in front of her house, covered by dry leaves. On examination of the liquid was found containing arrack. Hence it is alleged that the accused committed the offence under Section 55 (a) and (i) of the Kerala Abkari Act. 4. To substantiate the case, the prosecution examined PW1 to PW5. Exts. P1 to P7 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55 (a) and (i) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of three years each under Section 55 (a) and (i) of the Abkari Act and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Crl. Appeal is filed. 6. Heard the learned counsel for the appellant and learned Public Prosecutor. Crl.A. No.1691 of 2005 4 7. The learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence under Section 55 (a) and (i) of the Abkari Act is made out. The learned counsel for the appellant submitted that, the contraband articles were seized from the property of the appellant. The prosecution also has not proved that the contraband article was in conscious possession of the accused. The learned counsel also submitted that, in the forwarding note, there is no seal. According to the counsel, that is fatal to the prosecution. The learned counsel also submitted that, even though the seizure of the contraband properties was 18.01.1999 the same was produced before the Court as evident by Ext. P3 property list only on 25.01.1999. There is absolutely no explanation from the prosecution for the delay of 7 days in producing the article before the Court. 8. The learned Public Prosecutor submitted that, the prosecution established the case based on the oral evidence of PW1 to PW5 and Exts.P1 to P7. 9. The point for consideration in this appeal is Crl.A. No.1691 of 2005 5 whether the accused committed the offence under Section 55 (a) and (i) of the Abkari Act. 10. I perused Ext. P4 forwarding note in this case. In the forwarding note, Sl. No. 10 is the space for sample seal. There is no seal affixed in the forwarding note. The importance of the seal in forwarding note is considered by this Court 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 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.” 11. In the light of the above authoritative judgments, it is clear that, the lack of seal in the forwarding note is fatal Crl.A. No.1691 of 2005 6 to the prosecution. If there is no seal in the forwarding note, there is no guarantee that the seized articles are reached in the hands of the Analyst. Therefore, for this simple reason itself, the accused is entitled the benefit of doubt. 12. Similarly, there is no explanation for the delay in producing the contraband articles before the Court from 18.01.1999 till 25.01.1999. PW5, the Detecting Officer deposed that, it was in his safe custody. He has no authority to keep the contraband articles. The statute mandate that, the property should be forwarded to the Court forthwith. 13. The seizure of the contraband in this case was on 18.01.1999. The sample reached the Court only on 25.01.1999. 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 Crl.A. No.1691 of 2005 7 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. 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.” 14. In the light of the above discussions, I think the appellant/accused is entitled to the benefit of doubt in this case. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant/accused as per judgment dated 29.08.2005 in S. C. No. 975/2001 on the file of Additional Sessions Judge, Fast Track Adhoc-II, Crl.A. No.1691 of 2005 8 Thiruvanathapuram is set aside. The appellant/accused is set at liberty. The bail bond, if any, executed by the appellant/accused, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU