Mini, W/o Reghu, Thekkecharuvil Veedu, Kunnam, Nellickal Muri, Koipuram Village, Kozhencherry Taluk v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **CRL.A.No.1747 OF 2005** **AGAINST THE JUDGMENT IN SC NO.527/2004 DATED 27-09-2005 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC),FAST TRACK COURT-1, PATHANAMTHITTA** **AGAINST THE JUDGMENT IN CP NO.14/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II,PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **MINI, W/O. REGHU, THEKKECHARUVIL VEEDU, KUNNAM, NELLICKAL MURI, KOIPURAM VILLAGE, KOZHENCHERRY TALUK.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1747 OF 2005 2 ## **JUDGMENT** **Dated this the 17[th] day of June, 2020** … **The above appeal is filed by the accused in Sessions Case No. 527 of 2004 on the file of the Additional District and Sessions Judge(Adhoc) Fast Tract Court-I, Pathanamthitta. The accused was charge sheeted by the Sub Inspector of Police, Koipuram in Crime No. 198 of 2003 alleging offence punishable under Section 8(1) & (2) of the Abkari Act.** **2. The prosecution case is that the accused was found in possession of 3 liters of arrack on 16.07.2003 at 10 a.m, and the Sub Inspector of Police and party of Koipuram arrested her from the spot.** **3. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P11 are the exhibits marked on the side of the prosecution. Exhibit C1 is a clarification obtained from the Judicial First Class Magistrate-II. On going through the evidences and the documents, the Trial Court found that the accused committed the offence under Section 8(1) & (2) of the** CRL.APPEAL NO.1747 OF 2005 3 **Abkari Act and the accused is sentenced to undergo Rigorous imprisonment for 2 years and to pay a fine Rs.1,00,000/. In default of payment of fine the accused is directed to undergo simple imprisonment for 2 years. Against the conviction and sentence, this Crl.Appeal is filed.** **4. Heard the learned counsel for the appellant and the learned public prosecutor.** **5. The learned counsel for the appellant submitted that, in the forwarding note marked, there is no seal, and it is also not mentioned through whom the materials are forwarded to the Analyst by the Police. The Counsel submitted that, on this ground, the accused is entitled to get an acquittal. He also submitted that, in Ext.P10 Analyst report, it is stated by Analyst that he received a letter No. T.R.116/2003 dated 17.11.2003 on 05.08.2003. The counsel further submitted that the trial court obtained a report from the learned Magistrate on this contradiction, and the learned Magistrate reported that, it is a mistake. Hence, that aspect is discarded by the lower court. Therefore, the learned Counsel submitted that, such a procedure adopted by the trial court is not** CRL.APPEAL NO.1747 OF 2005 4 ## **proper. The Public Prosecutor supported the findings of the lower court.** **6. The point for consideration in this appeal is that, whether the accused committed the offence under Sections 8(1) & (2) of the Abkari Act.** **7. In this case, forwarding note is marked as Ext.P9. But in the forwarding note, there is no sample seal affixed in column 10. Moreover, in the first paragraph of Ext.P9, it is not mentioned through whom the same was forwarded to the Chemical Examiner. This Court in Kumaran v. State of Kerala [2016 (4) KLT 718] held that, if forwarding note is silent about the name of the person through whom the sample sent, the benefit of doubt will go to the accused. The relevant portion of Kumaran's case (supra) is extracted hereunder:** _**“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**_ CRL.APPEAL NO.1747 OF 2005 5 _**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 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 tamper-proof 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**_ CRL.APPEAL NO.1747 OF 2005 6 _**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.”**_ **In this case also the thondy clerk is not mentioned.** **8. Similarly, there is no seal in the forwarding note. The importance of the seal in forwarding note is – considered by this Court in Ravi. v. State S.I. of Police, Meppadi [2018(5) KHC 352 and Smithesh v. State of Kerala [2019(2) KLT 974** . **The relevant portion of the judgment in Smithesh’s case (supra) is extracted hereunder:** _**“8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.”**_ CRL.APPEAL NO.1747 OF 2005 7 **In the light of the above authoritative judgments, it is clear that, the lack of seal in the forwarding note is fatal to the prosecution. If there is no seal in the forwarding note, there is no guarantee that the seized articles are reached in the hands of the Analyst. Therefore, for this simple reason itself, the accused is entitled the benefit of doubt.** **9. A perusal of Ext.P10 would show that Analyst received the sample on 05.08.2003 as per letter dated 17.11.2003. Obviously, it can be a mistake. But, whether the court can obtain a report from the Magistrate concerned to fill up the lacuna is the question. If there is a mistake in Ext.P10 Analyst report, it is the duty of the prosecution to get a report from the Analyst and also from the court concerned and produce the same before the trial court. The court cannot get into the shoe of the prosecutor in such cases. I am in difficulty to accept Exhibit C1 report, especially because this is not marked while adducing evidence and moreover, the accused was not afforded an opportunity to cross-examine based on Ext.C1. Therefore, Ext.C1 cannot be accepted. Then the lacuna in Ext.P10 regarding the date remains. I think, the benefit** CRL.APPEAL NO.1747 OF 2005 8 **of doubt will go to the accused on this point also.** **Hence this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant/accused as per the judgment dated 27.09.2005 in Sessions Case No. 527 of 2004 of the Additional District and Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled.** **pkk** - **Sd/ P.V.KUNHIKRISHNAN JUDGE**