CRL.A. Nos. 572 of 2005 & 788 of 2005 v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **CRL.A.No.572 OF 2005** **AGAINST THE JUDGMENT IN SC NO.648/1999 DATED 18-03-2005 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), COURT-1, KOLLAM AGAINST THE JUDGMENT IN CP NO.102/1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KOLLAM** ## **APPELLANT/FIRST ACCUSED:** **==> picture [98 x 68] intentionally omitted <==** **LAL S/O JANARDHANAN, VASUVILASOM VEEDU, AAYIRAMTHENGU CHERRY, MAYYANAD, KOLLAM.** ## **BY ADV. SRI.S.SANTHOSH KUMAR** ## **RESPONDENT/COMPLAINANT:** **==> picture [98 x 54] intentionally omitted <==** ## **STATE OF KERALA** **REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SR.PP. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-7-2020 ALONG WITH CRL.A.788/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.Appeal Nos.572 & 788 of 2005 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **CRL.A.No.788 OF 2005** **AGAINST THE JUDGMENT IN SC NO.648/1999 DATED 18-03-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), COURT-1, KOLLAM** **AGAINST THE JUDGMENT IN CP NO.102/1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KOLLAM** ## **APPELLANT/2ND ACCUSED:** **==> picture [94 x 68] intentionally omitted <==** **BABU S/O RAVEENDRAN, PATHANAPALLY THODIYIL VEEDU,VALATHUNGAL GHS (WEST), ERAVIPURAM.** **BY ADV. SRI.AJAYA KUMAR G** ## **RESPONDENT/COMPLAINANT** **==> picture [94 x 95] intentionally omitted <==** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PP.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2020 ALONG WITH CRL.A.572/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.Appeal Nos.572 & 788 of 2005 3** ## **JUDGMENT** **[ CRL.A.572/2005, CRL.A.788/2005 ] Dated this the 10th day of July 2020** ... **These two appeals are filed by the first and the second accused in Sessions Case No. 648 of 1999 on the file of the Additional District and Sessions Judge (Adhoc) Court-1, Kollam.** **2. The First accused filed Crl.Appeal No.788 of 2005 and the second accused filed Crl.Appeal No.572 of 2005. Since these appeals are filed by the appellants against the judgment in the same Sessions Case bearing No.648 of 1999, I am disposing of these appeals by this common judgment.** **3. The Sub Inspector of Police, Kottiyam charge sheeted the accused in this case alleging offence punishable under Section 55(a) and (i) of the Abkari Act.** **4. The prosecution case is that, on 6.8.1998 at 4 p.m., about 5.400 litres of arrack was found** **Crl.Appeal Nos.572 & 788 of 2005 4** **stored for sale in 54 polythene covers of 100 ml each, in the toddy shop No.17 at Koottikkada, of which the first accused was the salesman and second accused was the licensee. Hence, the accused committed the offence.** **5. When the case came up for consideration, the counsel for the appellant in Crl.Appeal No.572 of 2005 reported that, the appellant in that appeal is no more. The same is recorded** **6. To substantiate the case, the prosecution examined PW1 to PW3. Exhibits P1 to P6 are the documents marked on the side of the prosecution. MO1 is the material object.** **7. After going through the evidence and documents, the trial court found that, the first accused committed the offence under Section 55(a) of the Abkari Act and the second accused committed the offence under Section 55(i) of the Abkari Act. The first accused is convicted and sentenced to undergo Rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- under Section 55(a) of** ## **Crl.Appeal Nos.572 & 788 of 2005 5** **the Abkari Act. In default of payment of fine, the first accused is directed to undergo Simple imprisonment for a further period of one year. The second accused is convicted and sentenced to undergo Rigorous imprisonment for a period of five years and to pay a fine of Rs.2,00,000/- under Section 55(i) of the Abkari Act. In default of payment of fine, the second accused is directed to undergo Simple imprisonment for a further period of two years. Aggrieved by the conviction and sentence, these Criminal Appeals are filed by the accused.** **8. Heard the learned counsel for the appellants and the learned Public Prosecutor.** **9. The learned counsel for the appellants submitted that, this is a case in which forwarding note is not produced and marked. According to the Counsel, simply because packed arrack are seized from the accused, there is no presumption that, the contents in it are arrack without an expert opinion. The counsel also submitted that, the prosecution has to prove that the sample taken from the seized** **Crl.Appeal Nos.572 & 788 of 2005 6** **contraband reached in the hands of the Analyst. For this purpose, the forwarding note is fatal. This is the submission of the counsel.** **10. The learned Public Prosecutor submitted that, the accused committed serious offence. The arrack is seized from a toddy shop. There is oral and documentary evidences to prove the same. In such circumstances, this Court may not interfere with the conviction and sentence imposed on the appellants.** **11. The point for consideration in this case is whether the first and the second accused committed the offence under Sections 55(a) and 55(i) of the Abkari Act.** **12. Admittedly, the forwarding note is not produced in this case. 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 the seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the** **Crl.Appeal Nos.572 & 788 of 2005 7** **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 (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 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)).”**_ **15. When the prosecution relies upon report** ## **Crl.Appeal Nos.572 & 788 of 2005 8** **of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.”** **16. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)]. Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. State of Kerala : AIR 1994 SC 117).** **17. The principles mentioned above get support also from the very recent decision of the Supreme Court, in Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019), wherein it has been held as follows:** **"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that** ## **Crl.Appeal Nos.572 & 788 of 2005 9** **the sample tested was narcotics cannot be conclusive proof by itself. The sample seized - " and that tested have to be co related . (emphasis supplied).”** **In the matter of relevancy of forwarding note, this Court in Madhavan Vs. State of Kerala (2019 (4) KLT 18), observed like this:** **“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner.** **20. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”** **Admittedly, in this case forwarding note is not** **Crl.Appeal Nos.572 & 788 of 2005 10** **produced. In the light of the above authoritative judgments, it is clear that, the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 13. In the light of the above discussions, I am of the opinion that, the accused are entitled the benefit of doubt. It is to be noted that, the appellant/ 2[nd] accused in Criminal Appeal No.572 of 2005 is reported as dead. It is true that, after the death of the appellant, near relatives of the deceased appellant had not approached this Court with an application to pursue the appeal. There is a sentence of fine of Rs.2,00,000/- imposed on the deceased appellant. Since I find that, the prosecution case is not sustainable on a fundamental issue, I am setting aside the conviction and sentence imposed on the 1[st] accused/appellant in Crl.Appeal No. 788/2005. I think, on the basis of the said finding, the benefit of the same will go to the 2[nd] accused/appellant in Crl.Appeal No. 572/2005 also.** **Hence, these Criminal Appeals are allowed with** **Crl.Appeal Nos.572 & 788 of 2005 11** ## **the following directions:** • **(i) The conviction and sentence imposed on the 1[st] accused/ appellant in Criminal Appeal No.788 of 2005 as per the judgment dated 18.3.2005 in S.C.No.648 of 1999 are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled.** **(ii) The sentence of imprisonment imposed on the deceased appellant in Criminal Appeal No.572 of 2005 as per the judgment dated 18.3.2005 in S.C.No.648 of 1999 is abated. The Sentence of fine imposed on the deceased appellant as per the above judgment is set aside.** **Sd/P.V.KUNHIKRISHNAN pkk JUDGE**