MUKKAYI v. STATE OF KERALA

CRL.A.No.1593 OF 2005 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **CRL.A.No.1593 OF 2005** **AGAINST THE JUDGMENT IN SC 92/2005 DATED 23-08-2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III, PALAKKAD** ## **APPELLANT/ACCUSED:** **MUKKAYI, W/O.MURUKESAN, AYYANKATTA, PUTHUR.** ## **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY S.I.OF POLICE, WALAYAR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR SRI. B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1593 OF 2005 2 ## **JUDGMENT** ## **Dated this the 18th day of June 2020** The above appeal is filed by the accused in S.C.No.92/2005 on the file of the Additional Sessions Judge, Fast Track Court No.III, Palakkad. The Sub Inspector of Police, Walayar Police Station chargesheeted the case against the accused alleging the offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that on 27.6.2002, the Sub Inspector of Police, Walayar Police Station received reliable information that there is unauthorised sale of liquor in a thatched shed situated on the right side of the road leading to the A.P. Steel company from the Kanjikode-Kozhinjampara Public Road and accordingly the Sub Inspector searched the said shed at 6 pm. on that day in accordance with law. When the Sub Inspector reached the said shed, the accused was found there. On inspection, he found 20 bottles with a capacity of 180 ml containing liquor in full with the label 'Blue Moon Special Rum' and 11 empty bottles of the same kind, placed over the coir cot in the said shed. The accused was CRL.A.No.1593 OF 2005 3 arrested and after investigation charge sheet was submitted with above offence alleged. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P6 are the documents marked on the side of the prosecution. MO1 to MO29 are the material objects. 4. Ongoing through the evidence and the documents, the lower court found that the accused committed the offence under Section 55(a) 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 a further period of six months. 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 part of investigation in this case was conducted by the Assistant Sub Inspector, who is not an authorised officer. The counsel also submitted that the forwarding note produced is only a carbon copy of the original and it does not contain the specimen seal. Therefore, there is no guarantee that the seized article reached in the hands of analyst. The counsel CRL.A.No.1593 OF 2005 4 also submitted that the thondi list is not marked in this case. The seizure of the contraband in this case was on 27.6.2002. Ext.P6 analyst report says that the sample reached in the hands of the analyst on 8.7.2003. There is no explanation from the prosecution for the delay in producing the sample before the analyst. 7. The learned Public Prosecutor submitted that in the light of the oral and documentary evidence, there is nothing to interfere with the conviction and sentence imposed by the trial court. 8. After hearing both sides, the point to be decided is whether an offence under Section 55(a) of the Abkari Act is made out in this case. 9. The first contention of the accused is that the part of investigation in this case is conducted by the Assistant Sub Inspector, who is not authorised and hence the prosecution is unsustainable. 10. In this case, the part of the investigation was conducted by PW6, the Assistant Sub Inspector of Police. Whether the Assistant Sub Inspector is authorised to conduct investigation in an abkari case was considered by this Court in several judgments. In **Omana v. State of Kerala (2015 KHC 1000)** , it is held that if detection, arrest, seizure and CRL.A.No.1593 OF 2005 5 investigation in an abkari case is conducted by the Assistant Sub Inspector, the same will vitiate the trial. Relevant portion of the judgment is extracted hereunder: “14. Further in this case it is seen from the evidence that the detection, arrest, seizure and investigation etc, were done by the Assistant Sub Inspector of Police who is not an Abkari Officer empowered to arrest and effect seizure and conduct investigation under S.34 of the Abkari Act. The Assistant Sub Inspectors of Police were not authorised as Abkari Officers to exercise the powers of Abkari Officer under the Act. The Court below had come to the conclusion that since the Assistant Sub Inspectors were also vested with the power under S.4 and S.5 of the Abkari Act, though they are not covered by the notification they can detect and arrest and effect seizure in Abkari offences. But that was found to be not correct in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157), in which it was observed that the Assistant Sub Inspector of Police is not an authorised officer empowered to detect and investigate an offence under the Abkari Act as he was not covered by the notifications issued by the Government in this regard, viz, SRO 321/1996. Further in this case there is no document produced on the side of the prosecution to prove that PW5 was in charge of the Police Station in the absence of PW6, getting the powers of the Station House Officer to detect the crime. Such an evidence is also not available in this case. Further the dictum laid down in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157] was approved by the Division Bench of this Court in Subash v. State of Kerala [2008(2) KHC 703 : 2008(2) KLT 1047 : 2008(2) KLD 67]. So merely because the investigation was verified and final report was filed by PW6 the Abkari Officer will not validate the act of seizure and arrest made by PW5 the Assistant Sub Inspector of Police who is not an Abkari Officer and as such no conviction can be based on such arrest and seizure. If seizure is found to be done by a person who is not to empowered to effect seizure, then the seizure is bad in law, and no conviction can be based on such seizure made by an incompetent person.” The same point was considered by this Court in **Subash v.** CRL.A.No.1593 OF 2005 6 **State of Kerala (2008(2) KHC 703), Biju and others v. State of Kerala (2011(1) KHC 518)** and **Chandrababu v. State of Kerala (2016(2) KLT 842)** . 11. The seizure of the contraband in this case was on 27.6.2002. The sample reached the court only on 8.7.2003. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi** 's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” ## 12. Since there is no explanation for not producing the CRL.A.No.1593 OF 2005 7 contraband article in this case immediately after seizure, the accused is entitled to the benefit of doubt on this ground also. 13. As far as the forwarding note is concerned, only a carbon copy of the forwarding note is produced and marked as Ext.P5. There is no specimen seal in it. Moreover, since the carbon copy alone is marked, which does not contain the seal, the effect is that there is no forwarding note produced by the prosecution. 14. 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. 15. 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 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 CRL.A.No.1593 OF 2005 8 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)).” 16. In the light of the authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 17. Moreover, admittedly, the property list is not marked in this case. Usually, the contraband article seized will be produced before the Magistrate Court with a property list. The court can gather the date on which the contraband reached the court from the entries in the property list. There is no property list produced in this case. In such circumstances, the court is handicapped in finding out the date on which the property reached the court. Simply because the police/excise witnesses deposed that the property list reached in the court on such and such date, unless the documentary evidence like property list is there to verify, the oral evidence adduced by those witnesses can't be believed. In this case the CRL.A.No.1593 OF 2005 9 property list is not marked. Moreover, in the analyst report, it is noted that on 8.7.2003 the analyst received the sample through Police Constable. There is no evidence before the court to find out when exactly the property reached in the court. In other words, after the alleged seizure in this case on 27.6.2002, there is no explanation from the prosecution regarding the possession of the contraband articles till 8.7.2003, when the analyst received the sample. In such circumstances, on this ground also the accused is entitled to the benefit of doubt. 18. In the light of the above discussion, the appellant is entitled to the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 23.8.2005 in S.C.No.92/2005 on the file of the Additional Sessions Judge, Fast Track Court No.III, Palakkad is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** **ab**