Chandran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942** ## **CRL.A.No.381 OF 2005** **AGAINST THE JUDGMENT IN SC 687/2004 DATED 15-02-2005 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR** ## **APPELLANT/S:** **CHANDRAN, S/O KRISHNAN, KANNANCHERY HOUSE, SOUHRIDAYA NAGAR,, CHITTANJOOR DESOM, ANJOOR VILLAGE, THRISSUR.** **BY ADV. SRI.G.SANTHOSH KUMAR (P).** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNAMKULAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY SRI.K.B.UDAYAKUMAR, P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.381 OF 2005 2** ## **JUDGMENT** **Dated this the 15th day of October 2020** The appellant is the accused in S.C.687/2004 of the III Addl. Sessions Court (ADHOC), Fast Track No.1, Thrissur. The case was chargesheeted by the Sub Inspector of Police, Kunnamkulam, alleging offences punishable under Sections 8(1) read with 8(2) and 55(g) of the Abkari Act. 2. The prosecution case is that, on 26.08.2001 at 6.30 PM, PW1 Sub Inspector of Police got reliable information that arrack was being manufactured and sold in the house of the accused. He searched the house after complying with the formalities. It is the case of the prosecution that, the accused was found sitting in the kitchen of his house. There was a plastic bottle near the accused which contained one litre of arrack. Utensils and materials for manufacturing the arrack were also found in the kitchen. PW1 arrested the accused and after investigation of the case, he filed the **CRL.A.No.381 OF 2005 3** chargesheet. 3. To substantiate the case, prosecution examined PW1 to PW6 and marked Exts.P1 to P10. MO1 to MO6 are marked as material objects. After going through the evidence and documents produced, the Court found that the accused is not guilty under Section 8(1) and (2) of the Abkari Act. But the accused is found guilty under Section 55(g) of the Abkari Act, and he is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a period of six months. Hence this Criminal Appeal. 4. Heard learned counsel for the appellant and learned Public Prosecutor. 5. Learned counsel for the appellant submitted that, the alleged seizure of the articles in this case was on 26.08.2001 and the property was produced before this Court only on 17.10.2001. Learned counsel also submits that ## **CRL.A.No.381 OF 2005 4** there is no forwarding note produced in this case. Learned counsel submits that, on these two grounds, the appellant is entitled for the benefit of doubt. 6. Learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offences under Section 55(g) of the Abkari Act. Learned Public Prosecutor submits that, this Court may not interfere with the conviction and sentence imposed by the Trial Court on technical grounds. 7. The point for consideration in this appeal is whether the accused committed the offence under section 55(g) of the Abkari Act. 8. The admitted prosecution case is that, the contraband was seized along with the accused on 26.08.2001. But the property was not produced before the Court along with the list of property. Only the list was produced in the Court on 04.10.2001. Thereafter, the properties were produced before the Court only on 17.10.2001. The seizure of the alleged ## **CRL.A.No.381 OF 2005 5** contraband article was on 26.08.2001. PW6 explained the delay by stating that, it was in his personal custody till they were produced before the Court. I cannot agree with the above explanation given by PW6. It is settled by several decisions of this Court that delay in producing the articles in Abkari cases are fatal to the prosecution. The prosecution has to explain the delay in producing the property. In this case, there is absolutely no explanation for the same. This is fatal to the prosecution. 9. The seizure of the contraband in this case was on 26.08.2001. The sample reached the Court only on 17.10.2001. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the Court. This point is 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]**_ . **CRL.A.No.381 OF 2005 6** Relevant portion of the 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_ **CRL.A.No.381 OF 2005 7** _verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”_ 10. Similarly, the forwarding note is also not marked in this case. Forwarding note is also a material document necessary to establish that the seized article reached in the hands of the analyst. It is the duty of the prosecution to prove all the links starting from seizure of the contraband article till it reaches in the hands of the analyst. In this case, admittedly, forwarding note is not marked. The same is fatal to prosecution. 11. 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 the links to prove the prosecution case in abkari cases. **==> picture [367 x 10] intentionally omitted <==** **CRL.A.No.381 OF 2005 8** considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala [2019(4) KLT 79], Vijayan @ Pattalam Vijayan and another v. State of Kerala [2018(2) KHC 814]**_ and _**Prakashan 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 prosecution case. The copy of the forwarding note prepared by PE5 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 Prakashan v. State of Kerala [2016 KHC 96 : 2016(1) KLD 311 : 2016(1) KHC SN 40 : 2016(1) KLT SN 96] and Gopalan v._ **CRL.A.No.381 OF 2005 9** _State of Kerala [2016 KHC 541 : 2016(2) KLD 469 : 2016(3) KLT SN 16]].”_ 13. In the light of the above discussions, I think the appellant is entitled to benefit of doubt. Criminal Appeal is allowed. The conviction and the sentence imposed on the appellant as per the judgment dated 15.02.2005 in the S.C. No.687/2004 on the file of the III Addl. Sessions Judge (ADHOC), Fast Track No.1, Thrissur is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **uu** **15.10.2020**