Prakash S/o Ramakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** ## **CRL.A.No.1766 OF 2005** **AGAINST THE JUDGMENT IN SC NO.549/2004 DATED 12-09-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA** **AGAINST THE JUDGMENT IN CP NO.28/2002 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THIRUVALLA.** **APPELLANT/ACCUSED NO.1:** **PRAKASH S/O. RAMAKRISHNAN, KEEZHUPARAMBIL HOUSE, AZHIYIDATHUCHIRA, KAVUMBHAGAM, THIRUVALLA.** **BY ADV. SRI.C.S.MANU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, THIRUVALLA POLICE STATION, NOTICE TO WHOM MAY BE, SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR. PUBLIC PROSECUTOR, SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1766 OF 2005 2 ## **JUDGMENT** ## **Dated this the 30[th] day of June, 2020** ## **...** The above appeal is filed by the 1[st] accused in Sessions Case No.549 of 2004 on the file of the Additional District & Sessions Judge (Ad hoc) Fast Track Court-II, Pathanamthitta. 2. The appellant and four others were charge sheeted by the Sub Inspector of Police, Thiruvalla Police Station alleging offence punishable under Sections 8(1) and (2) of the Abkari Act. 3. The prosecution case is that, the 1[st] accused was found selling arrack by keeping in his possession a green plastic jug of the size of 1½ litres containing 1 litre of arrack and 2 glass tumblers in the store room on the western portion of Kizhakkum muri toddy shop bearing No.T.S7 in Kihakkum muri in Kavumbhagam village at about 8.20 a.m. on 1.12.2000. The Police party reached there and the 2[nd] accused was present at the time of CRL.APPEAL NO.1766 OF 2005 3 search. Accused Nos.3 to 5 are the licensees of the shop. Hence, it is alleged that, the accused committed the offence under Sections 8(1) & (2) of the Abkari Act. 4. After going through the records, the trial court framed a charge against all the accused under Section 8(1) and (2) of the Abkari Act. 5. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P9 are the documents marked on the side of the prosecution. One witness DW1 is examined on the side of the defence. MO1 to MO4 are the material objects. 6. After going through the evidence and documents, the trial court found that, accused Nos. 2 to 4 are not guilty. But, the 1[st] accused was convicted and sentenced under Section 8(2) of the Abkari Act. The 1[st] accused is directed to undergo Simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo imprisonment for a further period of one year. Aggrieved by the conviction and CRL.APPEAL NO.1766 OF 2005 4 sentence, this Crl.Appeal is filed. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant submitted that, even though forwarding note is produced in this case, there was no seal affixed in it. On this simple reason, the counsel submitted that, the accused is entitled the benefit of doubt. The learned Counsel further submitted that, the forwarding note marked as Ext.P6 is silent about the person through whom the sample was sent to the Analyst. 9. The learned Public Prosecutor submitted that, in the light of the oral and documentary evidence in this case, the prosecution proved this case and hence there is nothing to interfere with the findings of the trial court. 10. Admittedly, in Ext.P6 forwarding note, there is no seal. The importance of the seal in forwarding note is considered by this Court in **– Ravi. v. State S.I. of Police, Meppadi** [2018(5) CRL.APPEAL NO.1766 OF 2005 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.”_ 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 CRL.APPEAL NO.1766 OF 2005 6 simple reason itself, the accused is entitled the benefit of doubt. 11. Moreover, the forwarding note is silent with regard to the name of the person through whom the sample was sent for chemical analysis. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst is not examined. This Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718] held as follows: _“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 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_ CRL.APPEAL NO.1766 OF 2005 7 _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_ CRL.APPEAL NO.1766 OF 2005 8 _to the prosecution. For the said reason also, the revision petitioner is 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._ **==> picture [402 x 12] intentionally omitted <==** **==> picture [437 x 12] intentionally omitted <==** doubt. **==> picture [402 x 13] intentionally omitted <==** conviction and sentence imposed on the appellant as **==> picture [437 x 76] intentionally omitted <==** Pathanamthitta, is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**