CRL.A NO. 817 OF 2007

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 ``` ``` CRL.A NO. 817 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 1640/2001 OF ADDITIONAL S.C.- ``` ## **`TRIAL OF ABKARI ACT CASES,NEYYATTINKARA`** ## **`APPELLANTS/ACCUSED NO.1 AND 2:`** - `1 SURESH, S/O. KUMARESAN PILLAI, COLONY NO.5, VANIYATHERUVU,, BALARAMAPURAM,THALAYAL DESOM,, ATHIYANOOR VILLAGE.` ``` 2NAZAR, S/O.ALIYARUKUNJU, THEKKEMALANCHARUVU EDAKONATHU VEEDU,, ERUTHAVOOR,THALAYAL DESOM,, ATHIYANOOR VILLAGE. ``` ``` BY ADVS. PREMCHAND R.NAIR C.A.SUNIL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, NEYYARDAM POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A.No. 817 of 2007 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.No. 817 of 2007 ============================================================= Dated this the 1[st] day of August, 2022 ## **JUDGMENT** The appellants are the accused in SC No.1640 of 2001 on the files of the Additional Sessions Judge for the Abkari Cases, Neyyattinkara. The above case is chargesheeted by the Sub Inspector of Police, Neyyardam allegeing offences punishable under Section 58 of the Abkari Act. 2. The prosecution case is that the Sub Inspector of Police, Neyyardam Police Station was doing night patrol duty on 24.05.1998 at 4.30 hours and he found an autorickshaw bearing No.KL-01/E-5938. The same was intercepted. The 2[nd] accused, the driver of the vehicle fled away and the 1[st] accused, who was travelling in the said vehicle was apprehended. On search of the autorickshaw eight 20 liter jerrycans filled with -3- Crl.A.No. 817 of 2007 arrack were found and the same was seized. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case prosecution examined PW1 to PW5. Exts.P1 to P11 are the exhibits marked from the side of prosecution. MO1 is the material object. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 58 of the Abkari Act. The accused were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/each, in default to undergo rigorous imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. -4- Crl.A.No. 817 of 2007 5. The counsel for the appellants submitted that in this case, the prosecution miserably failed to prove that the seized article reached the hands of the analyst. The counsel submitted that in the forwarding note, there is no seal. The counsel also submitted that no sample is taken from the spot by the detecting officer and the same was taken from the Magistrate’s Court and that also by the Thondi Clerk. The Counsel relied on the . judgment in **Smithesh v. State of Kerala [2019 (2) KLT 974]** The Public Prosecutor, on the other hand, submitted that there is oral and documentary evidence to justify the conviction and sentence imposed by the trial court. 6. This Court considered the contentions of the appellants and the Public Prosecutor. Admittedly, there is no seal in the forwarding note. If there is no seal in the forwarding note, that is fatal to the prosecution. It is seen that a seal is separately produced as Ext.P10. But a reading of the evidence -5- Crl.A.No. 817 of 2007 of PW4, it is clear that he prepared the forwarding note from the spot itself and he affixed his signature in the forwarding note. That shows that there is contradiction in the oral and the documentary evidence. 7. 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. -6- Crl.A.No. 817 of 2007 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. Moreover, admittedly no samples were taken from the contraband by the detecting officer or by other officers. The entire contraband seized is produced before the Court and the Thondi Clerk has taken the sample from the contraband. That process is not correct. This point is considered by this Court in **Smithesh’s case (supra)** . The relevant paragraph of the above decision is extracted hereunder: “7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced -7- Crl.A.No. 817 of 2007 before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans.” 9. In the light of the above discussion, I think the benefit of doubt will go to the appellants. Therefore, this appeal is to be allowed. The appeal is allowed. The conviction and sentence imposed on the appellants as per judgment dated 11.05.2007 in SC No.1640 of 2001 on the file of Additional Sessions Judge for Abkari Cases, Neyyattinkara, is set aside. The appellants -8- Crl.A.No. 817 of 2007 are set at liberty. The bail bond, if any, executed by the accused are cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** das