Bijulal s/o Vidyadharān v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **CRL.A.No.1834 OF 2005** **AGAINST THE JUDGMENT IN SC NO.831/2000 DATED 07-10-2005 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC)-II, KOLLAM** ## **APPELLANT/ACCUSED NO.2** **BIJULAL S/O.VIDHYADHARAN,PANDARAPADATHU VEEDU, NEAR MARIYALAYAM BAR, SAKTHIKULANGARA.** **BY ADVS. SRI.S.VIJAYAKUMAR SRI.R.RANJITH SRI.M.T.SURESHKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1834 OF 2005 2** ## **JUDGMENT** ## **Dated this the 24[th] day of June, 2020** ... The above appeal is filed by the 2[nd] accused in Sessions Case No.831 of 2000 on the file of the Additional District & Sessions Court (Adhoc)-II, Kollam. 2. The above case is charge sheeted by the Sub Inspector of Police, Kollam East Police Station against the appellant and another alleging offences punishable under Section 55(a)(g) and 8(1) & (2) of the Abkari Act. 3. The Prosecution case in brief is that, on 9.4.1999 at 8 p.m., accused 1 and 2 were found in possession of 15 litres of illicit arrack, utensils and materials necessary for manufacturing arrack. It was transported in a mini lorry bearing No.KL-2B-3587 driven by the 1[st] accused through National Highway 47 leading from Thiruvananthapuram to Kollam. Police party intercepted the vehicle at S.N.College junction, Kollam and seized the contraband after arresting the accused. CRL.APPEAL NO.1834 OF 2005 3 Hence, it is alleged that, the accused committed the offence. 4. To substantiate the case, the prosecution examined PW1 to PW7. Exhibits P1 to P6 are the documents marked on the side of the prosecution. Exhibits D1 to D7(a) are the exhibits marked on the side of the defence. DW1 to DW4 are examined as witnesses on the side of the defence. MO1 to MO14 are the material objects. 5. After going through the evidences and documents, the trial court found that, the 1[st] accused is not guilty. The second accused, who is the appellant herein was convicted and sentenced under Section 55(a) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. In default of payment of fine, he is directed to undergo Rigorous imprisonment for a further period of one year. Aggrieved by the conviction and sentence, this appeal is filed. 6. Heard the learned Counsel for the appellant CRL.APPEAL NO.1834 OF 2005 4 and the learned Public Prosecutor. 7. The learned counsel for the appellant submitted that, he is entitled acquittal because the offence is detected by an Assistant Sub Inspector of Police. The Counsel also submitted that, forwarding note is not marked in this case. 8. The learned Public Prosecutor submitted that, in the light of the oral and documentary evidences, the prosecution proved the offence and hence there is nothing to interfere with the conviction and sentence imposed by the lower court. 9. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 10. The first contention of the appellant is that, the offence is detected by an Assistant Sub Inspector of Police, who is not authorized. Hence, the appellant is entitled the benefit of doubt. I think, there is some force in the contention of the appellant. Whether the Assistant Sub Inspector of Police is having authority for search and seizure CRL.APPEAL NO.1834 OF 2005 5 in Abkari cases was considered by this Court in several judgments. In **Omana v. State of Kerala (2015 KHC 1000)** , it is held that, if detection, arrest, seizure and investigation in an Abkari case is conducted by an 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_ CRL.APPEAL NO.1834 OF 2005 6 _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 CRL.APPEAL NO.1834 OF 2005 7 **Subash v. 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). In the light of the above authoritative judgments, the trial is vitiated in this case. 11. The learned Counsel further submitted that, forwarding note is not marked in this case and on this ground also, the benefit of doubt will go to the appellant. I think, there is some force in this contention also. 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. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala** CRL.APPEAL NO.1834 OF 2005 8 (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_|_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)).”_||| In the light of the authoritative judgments referred above, it is clear that, the non production of the forwarding note is fatal to CRL.APPEAL NO.1834 OF 2005 9 the prosecution. That itself can be a ground for acquitting the accused. 12. In the light of the above discussions, I am of the view that, the appellant is entitled the benefit of doubt. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 7.10.2005 in Sessions Case No.831 of 2000 on the file of the Additional District & Sessions Court (Adhoc)-II, Kollam are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**