Prabhakaran s/o Madhava Panicker v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.869 OF 2006(C)** **AGAINST THE JUDGMENT IN SC NO.352/2001 DATED 04-04-2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **PRABHAKARAN S/O MADHAVA PANICKER, MINI BHAVAN, NEAR MANALI JN, KOLLODE MURI,, KULATHUMMAL VILLAGE.** **BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.869 of 2006 2** ## **JUDGMENT** ## **Dated this the 15th day of December 2020** ... The appellant is the accused in Sessions Case No.352 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara. 2. The above case is charge sheeted by the Sub Inspector of Police, Vilappilsala against the appellant alleging offence punishable under Section 58 of the Abkari Act. 3. The prosecution case is that, on 24.05.1998 while the Sub Inspector of Police, Vilappilsala was conducting patrol duty, the accused was found in possession of a glass tumbler and 4 litres of arrack in a five litre black jerrycan. Hence, it is alleged that, the accused committed the offence. **CRL.APPEAL No.869 of 2006 3** 4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P5 are the documents marked on the side of the prosecution. Exhibits D1 to D6 are the documents marked on the side of the defence. MO1 and MO2 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 58 of the Abkari Act. The appellant is sentenced to undergo rigorous imprisonment for a period 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 for a period of three months. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellant and the learned public prosecutor. ## **CRL.APPEAL No.869 of 2006 4** 8. The learned counsel for the appellant submitted that, the forwarding note is not marked in this case. The counsel submitted that, there is four days delay in producing the property before the court. The counsel submitted that, the appellant is entitled the benefit of doubt on these reasons itself. 9. The learned public prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court. 10. The point for consideration in this appeal is whether the appellant committed the offence under Section 58 of the Abkari Act ? 11. Admittedly, the alleged seizure in this case was on 24.5.1998. As per Ext.P4 property list, the property produced before the court **CRL.APPEAL No.869 of 2006 5** only on 29.5.1998. There is no explanation from the prosecution witness about the delay in producing the contraband article before the court. Except the version that, it was in the safe custody of the officer concerned, there is absolutely no other explanation. The statute mandates that, the properties seized as per the Abkari Act should be produced before the court concerned forthwith. The officer concerned has no business to keep the same in his safe custody. This point is considered by this Court in several judgments. 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_ **CRL.APPEAL No.869 of 2006 6** _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.”_ Since there is no explanation from the part of the prosecution for the delay in producing the contraband article before the court, in the light of the above authoritative judgments, the appellant is entitled the benefit of doubt. **CRL.APPEAL No.869 of 2006 7** 12. Admittedly, the forwarding note is not marked in this case. 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. 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) is extracted hereunder: **CRL.APPEAL No.869 of 2006 8** _“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)).”_ In the light of the above authoritative judgments, it is clear that, the failure on the part of the prosecution to prove the forwarding note is fatal to the prosecution case. In such circumstances, non production of the forwarding note is fatal. That itself can be a ground for acquitting the accused. 13. In the light of the above reasons, **CRL.APPEAL No.869 of 2006 9** I think, the accused is entitled the benefit of doubt. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 4-4-2006 in S.C.No.352 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. If any amount is deposited by the appellant as per the direction of this Court, the same should be disbursed to the appellant. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**