Jalaludeen s/o Muhammed Sale v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **CRL.A.No.2204 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 516/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **AGAINST THE ORDER/JUDGMENT IN CP 323/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA** ## **APPELLANT/S:** **JALALUDEEN S/O.MUHAMMED SALE, SALIM BUNGLOW,, IDICHAKKAPLAMOODU, PARASUVAIKKAL VILLAGE,, NEYYATTINKARA TALUK.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT/S:** **STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** **SR.PP- SRI. K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2204 OF 2006** **2** ## **J U D G M E N T** ## **Dated this the 17th day of December 2020** Appellant is the accused in SC No.516/2001 on the file of Additional Sessions Judge for the trial of Abkari Act cases, Neyyanttinkara. 2. The above case is chargesheeted by the Excise Inspector, Amaravila, alleging offence punishable under Section 58 of the Abkari Act. 3. The prosecution case is that the Preventive Officer of Amaravila Excise Range, while he was on Patrol duty on 29.10.1999, found the accused with 5 litres of arrack in a white jerrycan at the northern side of Neyyattinkara-Parassala N.H Road. Hence, it is alleged that the accused committed the offence. 4. To substantiate the case, the prosecution examined **CRL.A.No.2204 OF 2006** **3** PW1 to PW6. Exts.P1 to P7 are marked from the side of prosecution. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment of 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 of three months. 5. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 6. Heard the learned counsel for the appellant and learned Public Prosecutor. 7. The counsel for the appellant submitted that the appellant is entitled to the benefit of doubt in this case, for the simple reason that the forwarding note is not marked in this case. The counsel submitted that even though, the thondi clerk is examined as PW6 the prosecution miserably, fails to proved **CRL.A.No.2204 OF 2006** **4** that the seized articles reached in the hands of the analyst. According to the counsel, marking of forwarding note is necessary in Abkari cases and if that is not marked, in the light of several judgments of this Court, the accused is entitled to the benefit of doubt. The counsel also submitted that the sample is taken from the court and not from the place of occurrence by the detecting officer. The counsel submitted that the court has no business to take sample from the contraband articles. 8. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove the offence and there is nothing to interfere with the conviction and sentenced imposed on the accused. 9. The point for consideration in this case is whether the appellant committed offence under Section 58 of the Abkari Act. 10. Admittedly, the forwarding note is not marked in **CRL.A.No.2204 OF 2006** **5** this case. The importance of forwarding note is considered by this court in several judgments. The prosecution has to prove that the seized articles reached in the hands of the analyst. The forwarding note is one of the document to be proved by the prosecution to prove all the above links. Admittedly, in this case forwarding note is not marked. 11. 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. 12. 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) **CRL.A.No.2204 OF 2006** **6** 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)).” 13. Moreover, a perusal of the evidence of PW6 the thondi clerk will show that the sample is taken from the contraband from the court. The court has no business at all to collect the sample from the property produced before the court. 14. A perusal of Ext.P1 seizure mahazar, it is clear that **CRL.A.No.2204 OF 2006** **7** no sample is taken by the detecting officer from the spot. This Court in **Smithesh v. State of Kerala** (2019 (2) KLT 974) considered this point. This Court observed that the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment 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 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. Any way, 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.” 15. In the light of the above discussion, I think the **CRL.A.No.2204 OF 2006** **8** appellant in this case is entitled to the benefit of doubt. Therefore, the criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 27.09.2006 in SC No.516/2001 on the file of Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. **P.V.KUNHIKRISHNAN** **JUDGE** **JS**