Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **CRL.A.No.1324 OF 2005** **AGAINST THE JUDGMENT IN SC 698/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT:** **JOSE, S/O.MATHEW MANGATTUKALLAYIL HOUSE, THEKKINTHODE KARA, VATHUKUDY VILLAGE.** **BY ADVS. SRI.T.J.MICHAEL SRI.P.NOOR ZAMEER** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY BY THE PUBLIC PROSECUTOR.** **SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1324/2005 ## **JUDGMENT** ## **Dated this the 26th day of June 2020** The above appeal is filed by the first accused in Sessions Case No.698 of 2004 on the file of the Additional Sessions Judge (Adhoc-II), Thodupuzha. The S.I. of Police, Murickassery Police Station charge sheeted the appellant and another alleging offence punishable under Section 55(a) and (i) of the Abkari Act. 2. The prosecution case is that on 12.4.2003, at 12.30 P.M., accused No.1 was found carrying 6 litres of Indian made foreign liquor in 16 bottles of 375 ml. capacity, in Bus No.KL 5-6300, which is conducting service in Karimban - Thopramkudy route. The foreign liquor carried by accused No.1 was for sale to accused No.2, it is alleged. Accused No.1 was arrested with foreign liquor by the detecting officer. 3 Crl.A.No.1324/2005 3. After going through the records, charge under Section 55(a) of the Abkari Act was framed by the court. 4. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P5 are the exhibits marked on the side of the prosecution. MO1 to MO5 is the material objects. 5. After going through the evidence and the documents, the trial court found that the first accused committed the offence under Section 55(a) of the Abkari Act. But the second accused was found not guilty of the charge, and he was acquitted. Aggrieved by the conviction and sentence, the first accused filed this appeal. 6. The point for consideration, in this case, is whether the accused committed the offence under Section 55(a) of the Abkari Act. 7. Altogether six witnesses were examined in this case. PW1 to 4 are the ocular witnesses examined. But all of them turned hostile to the prosecution. PW5 is the Sub 4 Crl.A.No.1324/2005 Inspector who detected the offence. PW6 is the Sub Inspector who investigated the case. In a prosecution under the Abkari Act, the prosecution has to prove all the links starting from seizure of the contraband article till it reaches in the hands of the analyst. 8. 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. 9. 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 5 Crl.A.No.1324/2005 ## relevant portion of the judgment in _Gireesh_ 's case (supra) ## is 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)).”_ 10. Moreover, in this case, there is only uncorroborated evidence of PW5. Of course, there is no rule that the testimony of official witness is to be corroborated through independent witnesses. But, in this case, the seizure is from a bus. The conductor, driver, and the seizure mahazar witnesses turned hostile to the prosecution. In such circumstances, the non-examination of any other witnesses on the side of the prosecution to corroborate the evidence of PW5 raises some doubt in the 6 Crl.A.No.1324/2005 prosecution case itself. Moreover, the seizure of the property was on 12.4.2003, and the property was produced before the court on 21.4.2003. Of course, there is an explanation to the prosecution, which is discussed by the learned Sessions Judge in paragraph 10 of the judgment. Paragraph 10 of the judgment is extracted hereunder : _“10. Counsel for the accused argued that there is delay of 8 days in producing the thondy articles before court and hence the delay is fatal to the prosecution. PW5 has explained that there was no sitting in the court on that week due to the holidays of second Saturday, Vishu, Easter etc. Counsel for the accused produced a diary stated to be maintained in his office which states that Vishu in 2003 was on 18.4.03. It was also contended by him that the diary maintained by his clerk showed posting of cases on other days of the week except 18.4.2003 which meant that except 18[th] all other days of the week were working days and hence the delay in producing the thondy articles before court is not properly explained by the prosecution. On perusal of the High Court Calendar of 2003 I find that 12.4.03 on which date the case was detected was second Saturday which was a holiday, 13.4.03_ 7 Crl.A.No.1324/2005 _was Sunday a holiday, 15.4.03 was Vishu which was also a holiday. Since 13[th] and 15[th] were holidays 14[th] was declared a holiday by Government. 17.4.03 was Maundy Thursday a holiday and 18.4.03 was Good Friday which was also a holiday. 20.4.03 was Sunday which was another holiday. The records of the case would show that bail was granted to the accused by Sessions Court on 16.4.03 and that the bail bond was executed before JFCM II, Thodupuzha. Release order was issued by JFCM II Thodupuzha to Superintendent Sub Jail, Muvattupuzha to release the accused which would show that Judicial First Class Magistrate, Idukki was on leave on 16.4.03 also and that Judicial First Class Magistrate II, Thodupuzha was holding charge. It is not at all probable that the Judicial First Class Magistrate, Idukki would have attended court on 19.4.03 the next day because 20.4.03 was Sunday another holiday. On 21.4.03 which was the next available working day the thondy articles were produced before court. Hence I find that there is no delay in producing thondy articles before court. PW5 has explained that Murickassery Police Station is having no separate thondy room and that the articles seized were kept in the shelf in the police station under lock and key and that the key was kept by him. The evidence of PW5 would therefore show_ 8 Crl.A.No.1324/2005 _that the thondy articles were in his safe custody from 12.4.03 on which day it was seized from accused No.1 till 21.4.03 on which date it was produced before court.”_ 11. Even though the prosecution's explanation for the delay in producing the property before the court is accepted by the court, I feel that the custody of the property in the police station cannot be accepted when the Abkari Act says that the property should be produced before the court immediately. If the court is not working due to holidays, the investigating officer can approach the learned Magistrate concerned and get an order to the effect that the property can be stored in the police station till the next working day. In this case, there is no such attempt on the part of the investigating officer or the detecting officer. In such circumstances, the explanation given by the prosecution for the delay in producing the application cannot be accepted. 12. In the light of the above discussion, I think that 9 Crl.A.No.1324/2005 the accused is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 30.6.2005 on the file of the Additional Sessions Judge (Adhoc-II), Thodupuzha is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** **csl**