GOPALAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **CRL.A.No.341 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 202/2002 DATED 03-01-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 88/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** ## **APPELLANT:** **GOPALAN, S/O. NEELAKANTAN, KOOTTUNGAL VEEDU, KADATHOOR MURI, THAZHAVA VILLAGE, KARUNAGAPALLY TALUK, KOLLAM DISTRICT.** ## **BY ADV. SRI.S.SUDHEESHKAR** ## **RESPONDENT:** **STATE OF KERALA REP. BY KARUNAGAPPALLY EXCISE RANGE OFFICER,, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No. 341 of 2006 2 ## **P.V.KUNHIKRISHNAN, J.** ## **=================== Crl.A. No. 341 of 2006 =================== Dated this the 4[th] day of December, 2020** ## **J U D G M E N T** Appellant is the accused in Sessions Case No.202 of 2002 on the file of Additional District & Sessions Judge (Adhoc- II), Kollam. The above case is charge sheeted against the appellant, alleging offences punishable under Sections 55(a), 8(1) & (2) of the Abkari Act. 2. The prosecution case is that, on 22.04.1998, at 1.55 P.M., the accused was found in possession of 1.5 litres of arrack in a 5 litre cannas. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P4 are the exhibits marked on the side of the prosecution. MO1 is the material objects. 4. After going through the evidence and Crl.A. No. 341 of 2006 3 documents, the trial court found that, the accused committed the offence under Section 8(1) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 Lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for one year. 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 forwarding note is not marked in this case. Moreover, the learned counsel also submitted that, there is a delay of two days in producing the contraband articles before the Court. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence entered by the trial court. 8. The point for consideration in this appeal is whether the accused committed the offence punishable Crl.A. No. 341 of 2006 4 under Section 8(1) of the Abkari Act. 9. Admittedly, the forwarding note is not produced and marked by the prosecution in this case. It is true that, the forwarding note is an important document in Abkari cases, because the specimen seal will be affixed in the forwarding note. 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 will prove that, the seized articles reached in the hands of the analyst. This Court in _**Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Vijayan @ Pattalam Vijayan and Another v. State of Kerala [2018 (2) KHC 814]**_ and in _**Prakasan and Another v. State of Kerala [2016 KHC 96]**_ explained the importance of forwarding note. The relevant portions in the judgment in _**Gireesh @ Manoj v. State of Kerala [2019 KHC 655]**_ is extracted hereunder. _“14. There is another lacuna in the prosecution case._ Crl.A. No. 341 of 2006 5 _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)).”_ 10. In the light of the above dictum laid down by this Court, the non production of the forwarding note in this case is fatal to the prosecution. 11. In the seizure mahazer also, the specimen signature affixed in the sample is not seen. This will also show that, the prosecution is not able to prove the links starting from seizure of the contraband, till it reaches in the hands of the analyst. Moreover, the alleged seizure of the contraband in this the case was on 22.04.1998, whereas the property reached the Court on 24.04.1998. Crl.A. No. 341 of 2006 6 There is no proper explanation from the prosecution for the same. That is also fatal to the prosecution. 12. Moreover there is a long delay in completing the investigation in this case. As far as the Abkari case is concerned, after the search and seizure, there is nothing more to investigate. In such situation long delay in completing the investigation is a matter to be explained by the prosecution. This Court in _**Kumaran v. State of Kerala [2016 (4) KLT 718], Chandran v. State [2016 (4) KLT 727] and Mukundan v. State of Kerala [2016 (3) KLT 532]**_ explained the above principle. The relevant portions of the judgment in _**Kumaran v. State of Kerala [2016 (4) KLT 718]**_ is extracted hereunder. - _“ 6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. state of Kerala [2015 (1) KHC 822] to buttress his argument. In Krishnan (supra), the Court_ Crl.A. No. 341 of 2006 7 _held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ 13. In the light of the above facts discussed above, I think the accused in this case is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 30.01.2006 in Sessions Case No.202 Crl.A. No. 341 of 2006 8 of 2002 on the file of Additional District & Sessions Judge (Adhoc- II), Kollam is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **(Sd/-)** **P.V.KUNHIKRISHNAN, JUDGE** LU