Criminal Appeal Nos.1613 & 1617 of 2005

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 CRL.A NO. 1613 OF 2005 ``` ``` AGAINST THE JUDGMENT IN SC 291/1998 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, KOLLAM ``` ## **`APPELLANT/ACCUSED:-(A1):`** ``` MANOJ, S/O. RAVEENDRAN, AGED 1 YEARS RAVEENDRA VILASAM VEEDU, KANNAMKOTTU MURI VETTIKKAVALA VILLAGE,, KOTTARAKKARA TALUK. ``` ``` BY ADV R.BINDU (SASTHAMANGALAM)(K/122/1990) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV.VIDYA KURIAKOSE, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ``` ``` ON 06.06.2022, ALONG WITH CRL.A.1617/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Criminal Appeal Nos.1613 & 1617 of 2005 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 CRL.A NO. 1617 OF 2005 ``` ``` AGAINST THE JUDGMENT IN SC 291/1998 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM ``` ## **`APPELLANT/ACCUSED NO.2:`** ``` KUNJUMON S/O. DIVAKARAN, THANDASSERI THARAYIL, PULIYOORVANCHI VADAKKU,, THODIYOOR VILLAGE. ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, SOORANADU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV.SMT.VIDYA KURIAKOSE PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2022, ALONG WITH CRL.A.1613/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Criminal Appeal Nos.1613 & 1617 of 2005 **3** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------Criminal Appeal Nos.1613 & 1617 of 2005 ---------------------------------------------Dated this the 06[th] day of June, 2022** ## **JUDGMENT** These two appeals are filed by the accused in same case and therefore, I am disposing these appeals by a common judgment. 2. The first accused in S.C.No.291/1998 on the file of the Additional District and Sessions Judge (Adhoc-II), Kollam filed Criminal Appeal No.1613/2005 and the second accused in the same case filed Criminal Appeal No.1617/2005. 3. The prosecution case in brief is that, on 12.02.1998 at 12.30 AM, first accused drove Ambassador Car bearing No.KLF-8491 through Puthiyakavu-Chakkuvally road in which he carried 10 litres of liquor in a white 10 litre cannas and 5 polethen pouches packed with liquor (100 ml in each pouch) sells it and also stored for sale. It is alleged that the first accused also kept Rs.18,000/- in the car and the same is the sale proceeds. It is also alleged that he sold 235 litres of spirit to accused 2 and 3. Another allegation is that an amount of Criminal Appeal Nos.1613 & 1617 of 2005 **4** Rs.14,000/- was recovered from accused and 3. Hence it is alleged that the accused committed the offence under Sections 55(a) and (i) of the Abkari Act. 4. To substantiate the case, the prosecution examined altogether 7 witnesses. Exts.P1 to P10 are the exhibits. Three witnesses were examined on the side of the defence. Ext.D1 is the copy of the inventory report. 5. After going through the evidence and documents on record, the trial court found that the accused committed the offence punishable under Section 8(1) of the Abkari Act. The appellants were sentenced to undergo rigorous imprisonment for 3 years each and to pay a fine of Rs.1 lakh each under Section 8(2) of the Abkari Act. Moreover, as per the report dated 19.10.2020 of the V[th] Additional District & Sessions Judge, Kollam, it is reported that the third accused faced trial and he is already acquitted as per the judgment dated 05.03.2009. 6. Heard the learned counsel for the appellants and the learned Public Prosecutor. 7. The learned counsel for the appellants raised two points. The learned counsel submitted that there is a delay of Criminal Appeal Nos.1613 & 1617 of 2005 **5** 70 days in producing the contraband articles before the Court after seizure. That will go to the root of the case in the light of several judgments. The counsel further submitted that the forwarding note is not produced and marked in this case. 8. The learned Public Prosecutor, on the other hand, submitted here is a case where the prosecution proved the case beyond reasonable doubt. The learned Public Prosecutor further submitted that there is oral and documentary evidence to prove the case. The learned Public Prosecutor also submitted that the trial court, after appreciating the evidence in detail, came to the conclusion that the accused committed the offence. The learned Public Prosecutor takes me through paragraph 15 of the impugned judgment and submitted that the trial court considered the matter in detail and there is nothing to interfere with the conviction and sentence imposed on the appellants. The learned Public Prosecutor submitted that huge amount of contraband is seized from the appellants and in this case, this Court may not interfere with the conviction and sentence imposed. 9. This Court considered the contentions of the appellants and the learned Public Prosecutor. It is an Criminal Appeal Nos.1613 & 1617 of 2005 **6** admitted fact that there is huge delay in producing the property before the Court. Admittedly the detection was on 12.02.1998. The property was produced on 24.04.1998. Even though PW7 gave an explanation to the effect that the seized articles were produced along with the accused, but it was returned for proper custody and later it was again produced on 24.04.1998. I perused Exts.P7 and P8 property list. There is nothing to show in these documents to show that the property was originally produced and it was returned by the court concerned. There is only one endorsement in the property list, which will show that the property was produced on 24.04.1998. There is absolutely no explanation for the delay of about 70 days in producing the property before the Court. If there is unexplained delay, that will go to the root of the case. 10. The seizure of the contraband in this case was on 12.02.1998. The sample reached the court only on 24.04.1998 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** Criminal Appeal Nos.1613 & 1617 of 2005 **7** ## **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 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.” 11. Similarly forwarding note is also not produced in this case. The importance of forwarding note in abkari cases is considered by this Court in several cases. It is the fundamental duty of the prosecution to prove all the links Criminal Appeal Nos.1613 & 1617 of 2005 **8** starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links starting from seizure of the contraband till it reaches in the hands of the analyst. The non production of forwarding note is fatal to the prosecution. 12. 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. 13. This Court in several decisions 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 **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 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 Criminal Appeal Nos.1613 & 1617 of 2005 **9** 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)).” 14. In the light of the above discussion, I think the other points need not be considered in detail. Simply because there is oral evidence to prove the seizure, if the prosecution is not able to prove that the seized articles are reached in the hands of the Analyst, that will go to the root of the case. Moreover there is a long delay in producing the seized articles before the Court and there is absolutely no explanation for the delay in producing the seized articles. In such circumstances, I think the accused in this case are entitled the benefit of doubt. Therefore, these appeals are allowed in the following manner: Criminal Appeal Nos.1613 & 1617 of 2005 **10** 1. The conviction and sentence imposed on the appellants as per judgment dated 10.08.2005 in S.C.No.291/1998 on the file of the Additional Sessions Judge (Adhoc)-II, Kollam is set aside and the appellants are set at liberty. 2. The bail bonds, if any, executed by the appellants, are canceled. sd/- JV **P.V.KUNHIKRISHNAN JUDGE**