CRL.A.No.1799 OF 2005

# **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.1799 OF 2005** **AGAINST THE JUDGMENT IN SC NO.1074/2003 DATED 27-09-2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK-III, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **KUNJU LEKSHMI AGED 70 YEARS MANALI VEEDU, T.C.65/252, IDAYAR, THIRUVALLAM, PACHALLOOR WARD, MUTTATHARA VILLAGE.** **BY ADVS. SRI.P.RAMACHANDRAN NAIR SRI.R.T.PRADEEP** ## **RESPONDENT/ACCUSED:** **THE STATE OF KERALA REP.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.1799 OF 2005 2** ## **J U D G M E N T** ## **Dated this the 24[th] day of June, 2020** ## **…** The above appeal is filed challenging the judgment in Sessions Case No.1074 of 2003 on the file of the Additional Sessions Court, Fast Track-III, Thiruvananthapuram. 2. The accused is charge sheeted by the Sub Inspector of Police, Poonthura Police Station alleging offence punishable under Section 55(a) of the Abkari Act. 3. The Prosecution case is that, on 18.04.2001 while PW5 and party were conducting patrol duty and reached at Thiruvallom Bye pass junction at about 5.15 p.m., they got reliable information that, one Kunjulekshmi at Edayar is conducting the sale of arrack near her house. The Police party proceeded to that place, and the accused was arrested with illicit liquor at 6.15 p.m. by PW4, **CRL.APPEAL NO.1799 OF 2005 3** 4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P6 are the documents marked on the side of the prosecution. D1 to D3 are the exhibits marked on the side of defence. MO1 to MO4 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. The accused is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, she is directed to undergo simple imprisonment for a further period of one month. Aggrieved by the conviction and sentence, this appeal is filed. 6. Heard the learned Counsel for the appellant and the learned Public Prosecutor. 7. The learned Counsel for the appellant submitted that, forwarding note is not marked in this case. According to the Counsel, the prosecution miserably failed to prove all the links starting from the seizure of the contraband till it reaches in the **CRL.APPEAL NO.1799 OF 2005 4** hands of the Analyst. 8. The learned Public Prosecutor submitted that, the prosecution proved the offence with ocular and documentary evidences. There is nothing to interfere with the conviction and sentence imposed by the trial 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. After hearing both sides, I think, there is some force in the contention of the appellant. Admittedly, the forwarding note is not marked 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 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 **CRL.APPEAL NO.1799 OF 2005 5** 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)).”_ In the light of the above authoritative judgments, it **CRL.APPEAL NO.1799 OF 2005 6** 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. 11. Moreover, the seizure of the contraband article in this case was on 18.04.2001. The sample collected from the contraband article was produced before the Court on 19.04.2001. There is no documentary evidence to show that when exactly the sample was produced before the Analyst. Exhibit P5 Analyst report says that, the sample was received in the laboratory on 23.04.2001. It is a settled position that, it is the fundamental duty of the prosecution to prove that, seized contraband article reached in the hands of the Analyst. The prosecution has to prove all the links starting from the seizure of the article till it reaches in the hands of the Analyst. In this case, the alleged seizure was on 18.04.2001. The sample taken from the seized contraband was sent to the Court on 19.04.2001 and according to the Analyst report, the sample received by the Analyst only on 23.04.2001 through a Police Constable-8872. The name ## **CRL.APPEAL NO.1799 OF 2005 7** of the Police Constable is not mentioned in the Analyst report. Further, he is not examined in this case. The prosecution has no case that, in whose custody the sample was during the period from 19.04.2001 to 23.04.2001. Without examining the Police Constable-8872, the prosecution cannot prove the same. Therefore, non-examination of Police Constable-8872 is fatal in this case. 12. Moreover, it is the duty of the prosecution to prove all the links starting from seizure of the contraband article until it reaches the chemical examiner's hands. In **Madhavan Vs. State of Kerala** (2019 (4) KLT 18), this Court 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_ **CRL.APPEAL NO.1799 OF 2005 8** _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. 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 Crl.A.No.2785/2008 10 v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ In the light of the dictum laid down by this Court in the above judgments, it is clear that, the prosecution has to prove all the links starting from the seizure of the article till it reaches in the hands of the Analyst. As the prosecution failed to prove the above, the benefit of doubt will go to the appellant. Moreover, as stated earlier, forwarding note is also not marked in this case. 13. In the light of the above facts, I think, the appellant is entitled an order of acquittal. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the **CRL.APPEAL NO.1799 OF 2005 9** judgment dated 27.09.2005 in S.C. No.1074 of 2003 on the file of the Additional Sessions Court, Fast Track-III, Thiruvananthapuram is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **pkk** **Sd/P.V.KUNHIKRISHNAN JUDGE**