Karunakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **CRL.A.No.1081 OF 2007** **AGAINST THE JUDGMENT IN S.C.No. 328/2005 DATED 16-06-2007 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA** ## **APPELLANT/ACCUSED:** **KARUNAKARAN AGED 50 YEARS S/O KOCHUKRISHNAN, SURYA BHAVANAM, RAMAPURAM MURI, KEERIKKADU VILLAGE, KARTHIKAPPALLY TALUK.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. D. CHANDRASENAN, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-11-2020,** **THE COURT ON 24-11-2020 DELIVERED THE FOLLOWING:** Crl. A. No. 1081 of 2007 2 ## **JUDGMENT** The appellant is the convict in S.C. No. 328 of 2005 of the Additional Sessions Court II, Alappuzha, who stands convicted for offence under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1 lakh, in default to undergo simple imprisonment for two months. 2. The precise allegation against the appellant is that on 07.01.2004, at 6.30 P.M., CW1/PW2, preventive officer and party while engaged in patrol duty on the NH 47, in front of the Government High School, Ramapuram, the appellant was found moving through the road carrying a plastic bottle containing some liquid. When its content was tested in the presence of independent witness, it was found 1[1] /2 litres of arrack. Thus the contraband was seized under a mahazar, the appellant was arrested and Crime No. 1 of 2004 of Excise Range Office, Kayamkulam was registered. The appellant was produced before court on the same day and was remanded. 3. After investigation, a charge sheet was laid before the Judicial First Class Magistrate, Kayamkulam, who took it on file as C.P.No. 124 of 2004. After completing the procedural formalities, Crl. A. No. 1081 of 2007 3 since an offence triable exclusively by the Court of Session was involved, the case was committed to the Sessions Court, Alappuzha from where it was made over to the trial court. 4. The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. He was on bail. 5. Prosecution evidence consists of the oral testimony of PWs 1 to 4 and Exts.P1 to P6 documents. The material object was identified and marked as MO1. On conclusion of evidence, when questioned under Section 313(1)(b) of the Criminal Procedure Code, hereinafter referred to as the 'Cr.P.C.', he denied all the incriminating materials tendered against him and reiterated his innocence. As it was not a case fit for acquittal under Section 232 of the Cr.P.C., he was called upon to enter on his evidence in defence. But no evidence was adduced by the appellant. After hearing counsel on both sides, by the impugned judgment, the learned Additional Sessions Judge found him guilty of offence under Section 8(2) of the Abkari Act and sentenced as aforestated. The appellant challenges that finding in appeal. 6. I heard the learned counsel for the appellant and also the learned Senior Public Prosecutor. The trial court records were Crl. A. No. 1081 of 2007 4 summoned and examined. 7. The learned counsel for the appellant submitted that since the independent witness had turned hostile to the prosecution, the trial court should not have ventured to convict the appellant. Moreover, even though the prosecution relied on the chemical examination report, in the absence of forwarding note under which the sample was reportedly sent to the laboratory, the finding of conviction cannot legally be sustained. 8. PW1, Shibu is cited as an independent witness who had allegedly signed the mahazar which is the basis of the registration of the crime. But he has bluntly denied having witnessed the incident or attested the mahazar. Though he admitted that the document bears his name and address, denied his signature on the document. He was declared hostile to the prosecution and was cross examined by the Public Prosecutor. PW2 is the preventive officer who detected the crime, seized the contraband, arrested the appellant and registered the crime. According to him, that day he was holding the charge of the Excise Inspector, while himself and party were on patrol duty, at 6.30 P.M. on 07.01.2004, at a distance about 100 mts. from the Government High School, Ramapuram in Keerikkad village, the appellant was Crl. A. No. 1081 of 2007 5 found transporting 1[1] /2 litres of arrack in a plastic bottle. He was arrested from the spot, sample of 200 ml. was collected from the arrack and the item was seized under Ext.P1 mahazar. Everything was done in the presence of independent witness. After reaching back excise office, he himself registered Crime No. 1/2004. On the next day, the appellant was produced before court along with the contraband. Even though he was cross examined in detail, nothing has been brought out to discredit his testimony. 9. PW3 is the Excise Inspector, Kayamkulam who laid the charge sheet. PW4 is the Excise Guard, Range Office, Kayamkulam who had accompanied PW2, while detecting the offence and arresting the appellant. He has given a statement fully in conformity with the version of PW2 **.** As stated earlier, the appellant maintained that no offensive article was seized from his possession as alleged by the prosecution, that he has no connection whatsoever with the material object. 10. This is a run of the mill type abkari case in which 1[1] /2 litres of arrack was allegedly seized from the possession of the appellant from a public place, while he was found carrying the same. As usual, the independent witness had turned hostile to the prosecution whereas Crl. A. No. 1081 of 2007 6 PWs 2 and 4, excise officials stood by their earlier version given to the investigating officer. Contemporaneous documents prepared at the time of detection of the crime also lend support to the prosecution case. The reason that independent witness has turned hostile to the prosecution is not a valid ground to belie the entire version of the prosecution. Therefore, the contention that since PW1, independent witness did not support the prosecution case is not a valid ground to discredit the case as a whole. 11. Whatever it may be, there is considerable force in the contention that the trial court was not justified in convicting the appellant in the absence of the forwarding note by which the sample collected from the contraband was sent for the report of the chemical examiner. If only the prosecution is able to bring in nexus between the contraband and the chemical examiner's report, the allegation can be said to be proved. In fact the report of the chemical examiner is the foundation of the case forming opinion about the complicity of the offender on which the charge sheet has been built up. In a large number of cases, this Court has taken uniform stand that nonproduction of forwarding note itself is sufficient to acquit the culprit. Such a document is expected to contain specimen impression of the Crl. A. No. 1081 of 2007 7 seal used for sealing the bottle containing the sample. If that document is not forthcoming, it is an important circumstance to doubt the veracity of the case. (See the decisions reported in **Unnikrishnan Nair v. State of Kerala [2020 (4) KLT 376]** , **Sadasivan @ Para v. State of Kerala and Another [2020 KHC 478]** etc.). 12. That means, even though the Ext.P6 report states that the seal on the bottle was intact and found tallying with the sample seal provided, we are in the darkness as to what was the sample seal, which might have been sent along with the forwarding note. Since the forwarding note itself is not produced or marked, the defence is correct in questioning the basis of the conviction relying on the chemical examination report. So long as such an important document is not relied on by the prosecution, the offender cannot be proceeded against placing implicit reliance on the report. 13. Such a vital infirmity in the prosecution evidence disturbs the very edifice of the charge. Benefit of such a lacuna in the case shall be given to the appellant. It is true that such an aspect was not agitated before the trial court nor urged in the appeal memorandum, still, so long as principles of pleadings are not applicable in a criminal proceedings in its full rigor, the appellant cannot be found fault with Crl. A. No. 1081 of 2007 8 for raising the contention for the first time before the appellate court. The appellant is entitled to get the benefit of doubt. Therefore, in reversal of the finding of guilt, he is found not guilty and acquitted under Section 386(b)(i) of the Cr.P.C. His bail bond is cancelled and he shall be set at liberty. Fine, if any, realised shall be refunded. sd/- **K.HARIPAL JUDGE** DCS/23.11.2020