Gopalan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942** ## **CRL.A.No.1091 OF 2006** **AGAINST THE JUDGMENT IN SC 381/2005 DATED 02-06-2006 OF ADDITIONAL SESSIONS JUDGE,FAST TRACK COURT-I, PALAKKAD** ## **APPELLANT/ACCUSED:** **GOPALAN, S/O. AZHAKELAN, THANNIPPUZHA VEEDU, KOTTAYANKAD, ELAVANCHERRY,, CHITTUR, PALAKKAD DISTRICT.** **BY ADV. SRI.C.C.THOMAS (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,, NENMARA, PALAKKAD DISTRICT, REPRESENTED BY, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY SMT.MAYA.M.N, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1091 OF 2006** **2** ## **P.V.KUNHIKRISHNAN, J. ===================== Crl.A. No.1091 of 2006** ## **===================== Dated this the 22[nd] day of February, 2020** ## **J U D G M E N T** Appellant is the accused in S. C. No. 381/05 on the file of Additional Sessions Judge, Fast Track-I, Palakkad. The above case is charge sheeted by the Excise Range Office, Nenmara against the appellant alleging offence punishable under Section 8 of the Kerala Abkari Act. 2. The prosecution case is that, on 18.01.2001 at 8.00 p.m., the accused was found in possession of 5 liters of arrack in a can in his possession near an electric post near his house on the side of canal bund from Chulliar to Karimkulam in Kottayamkad Desom in Elavanchery Village in Chittur Taluk. 3. To substantiate the case, the prosecution examined PW1 and PW2. Exts. P1 to P6 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material objects. 4. On going through the evidence and documents, the trial **CRL.A.No.1091 OF 2006** **3** court found that, the accused committed the offence under Section 8 of the Abkari Act. The appellant/accused was sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo rigorous imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the conviction and sentence imposed on the appellant is unsustainable, for the simple reason that, the property list is not produced by the prosecution. Moreover, the learned counsel also submitted that, there is a delay of 12 days in producing the contraband articles before the Court. The prosecution has no explanation for the same. The learned counsel also submitted that, in Ext. P4 forwarding note, the person through whom the sample is forwarded is kept blank, that is fatal to the prosecution. 7. The learned Public Prosecutor supported the judgment. The learned Public Prosecutor submitted that, there is oral and **CRL.A.No.1091 OF 2006** **4** documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court. 8. The point for consideration in this appeal is whether the appellant/accused committed the offence under Section 8 of the Abkari Act. 9. Admittedly, the property list is not marked in this case. The importance of property list in Abkari case is considered by this Court on earlier occasion. The Court will gather the date on which the properties reached the Court after seizure, through the property list. If the property list is not marked in this case, that is fatal to the prosecution. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to **CRL.A.No.1091 OF 2006** **5** prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly, the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked by the prosecution, that itself is a ground for acquittal. 10. Moreover, PW1, the Excise Inspector, Nenmara deposed that, the thondi articles were produced only on 30-01-2001, whereas the seizure was on 18-01-2001. There is no proper explanation for the delay in producing the thondi articles. This is **CRL.A.No.1091 OF 2006** **6** also fatal to the prosecution. [See _**Ravi V. State of Kerala (2011 (3) KLT 353), Sukumaran V. State of Kerala (2019 (3) KLT 920) and Balachandran V. State of Kerala (2020 (3) KHC 697)]**_ . 11. Moreover, the forwarding note is silent with regard to the name of the person through whom the sample is forwarded to the analyst. In Ext.P4 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in _**Kumaran v. State of Kerala [2016 (4) KLT 718]**_ held as follows: _“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the_ **CRL.A.No.1091 OF 2006** **7** _time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamperproof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 12. In the light of the facts discussed above, I think the appellant in this case is entitled to the benefit of doubt. Therefore, this criminal appeal is allowed. The **CRL.A.No.1091 OF 2006** **8** conviction and sentence imposed on the appellant/accused as per judgment dated 02.06.2006 in S. C. No. 381/05 on the file of Additional Sessions Judge, Fast Track-I, Palakkad is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. If any amount is deposited by the appellant at the time of executing the bond in connection with the interim order passed in this appeal, the same will be disbursed to the appellant. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **sa**