Bhargavan, S/o Kunjiraman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944 CRL.A NO. 1377 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 575/2001 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM CP 12/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,** ## **KARUNAGAPPALLY** ## **APPELLANT/ACCUSED:** BHARGAVAN, S/O.KUNJIRAMAN, SREENILAYATHI, KALLELIBHAGOM MURI, KALLELIBHAGOM VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADVS. SRI. K.SIJU SRI.PRATHEESH.P ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.SANAL P. RAJ, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1377 OF 2007 2 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.Appeal No. 1377 of 2007** **---------------------------------------------Dated this the 27[th] day of June, 2022** ## **JUDGMENT** This appeal is filed by the appellant/accused against the conviction and sentence imposed on him as per judgment dated 29.06.2007 in S.C No.575/2001 on the file of the Additional District and Sessions Judge (Adhoc) - I, Kollam. The above case is charge sheeted against the appellant/accused alleging offences punishable under Section 55(a) of the Abkari Act. 2. The prosecution case in brief is like this: On 09.12.1998 at 9 a.m. the accused was found in possession of 600 ml of arrack in front of the Bunglaw Kizhakkathil veedu, Kallelibhagam muri. 3. To substantiate the case, the prosecution CRL.A NO. 1377 OF 2007 3 examined PW1 to PW6 and marked Exts.P1 to P9. MO1 is the Material Object. 4. After going through the evidences and documents, the trial court concluded that the accused committed the offence under Section 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-(Rupees One lakh only) and in default of payment of fine, the accused is directed to undergo simple imprisonment for a period of 6 months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard counsel appearing for the appellant and the Public Prosecutor. 6. Counsel appearing for the appellant raised two points. The counsel submitted that Ext.P9 is the forwarding note. In Ext.P9, there is no seal affixed. The counsel also submitted that, in Ext.P9, it is not stated that, through whom the sample is forwarded. CRL.A NO. 1377 OF 2007 4 The Public Prosecutor on the other hand submitted that, there is oral and documentary evidence to prove that the accused committed the offence. 7. It is a settled decision that, if there is no seal in the forwarding note, the prosecution can not prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. In _**Ravi v. State – SI of Police, Meppadi [2018 (5) KHC 352], Smithesh v. State of Kerala [2019 (2) KLT 974]**_ and _**Balachandran v. State of Kerala [2020 (3) KHC 697]**_ , this Court considered the relevancy of seal in the forwarding note. It will be beneficial to extract the relevant portion of the judgment in _**Balachandran's case (supra)**_ : _“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_ CRL.A NO. 1377 OF 2007 5 _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 : 2018 (2) KLD 830 : 2018 (4) KLT SN 56 : 2019 (1) KLJ 31) and Smithesh v. State of Kerala (2019 KHC 3526 : 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."_ 8. For this simple reason itself, the appellant is CRL.A NO. 1377 OF 2007 6 entitled the benefit of doubt. Moreover, the forwarding note is silent, with regard to the name of the person through whom sample was send. In _**Kumaran P. v. State of Kerala and Others [2016**_ _**(4) KLT 718]** ,_ this Court considered this point in detail. It will be better to extract the relevant portion of the judgment in _**Kumaran's case (supra)** :_ _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext. P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext. P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 02/08/2007. It is not discernible as to why the space meant for writing the name of the Excise Guard / Preventive Officer, with whom the sample was sent, remained vacant in Ext. P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the_ CRL.A NO. 1377 OF 2007 7 _initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext. P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext. P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard / Preventive Officer with whom the sample was sent, remained vacant in Ext. P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the Court or the Excise guard concerned to prove the tamper - proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper - proof despatch of the sample to the laboratory and consequently, the tamper - proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The Courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the Courts below cannot be sustained._ _In the result, the revision petition stands allowed, setting aside the conviction and sentence_ CRL.A NO. 1377 OF 2007 8 _passed by the Courts below under S.58 of the Abkari Act and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and the revision petitioner is set at liberty.”_ In the light of the above discussion, I think the appellant in this case is entitled the benefit of doubt. Therefore, this appeal is allowed. i. The conviction and sentence imposed on the appellants as per judgment dated 29.06.2007 in S.C No.575/2001 on the file of the Additional District and Sessions Judge (Adhoc) - I, Kollam is set aside and the appellants are set at liberty. ii. The bail bonds, if any, executed by the appellants are cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM