PUSHPAN, S/O. SURENDRAN, AYYAPPENAMKONATHU, THADATHARIKATHU VEEDU,, KALIYIL DESOM, KEEZHTHONNAKKAL VILLAGE v. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **CRL.A.No.1992 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 71/2002 DATED 20-09-2006 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK III, THIRUVANANTHAPURAM.** **AGAINST THE ORDER/JUDGMENT IN CP 68/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL** ## **APPELLANT/ACCUSED:** **PUSHPAN, S/O. SURENDRAN, AYYAPPENAMKONATHU, THADATHARIKATHU VEEDU,, KALIYIL DESOM, KEEZHTHONNAKKAL VILLAGE.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.DILEEP P.PILLAI SMT.LAKSHMI.N.KAIMAL SRI.RENJITH B.MARAR SRI.T.K.SUJITH** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1992 OF 2006** 2 ## **JUDGMENT** ## **Dated this the 4th day of December 2006** ``` Appellant is the accused in S.C.No.71/2002 on the file of the Additional Sessions Judge, Fast Track Court-III, Thiruvananthapuram. The above case is registered against the appellant alleging offence punishable under Section 8(1)&(2) of Abkari Act. ``` ``` 2.The prosecution case is that on 26-09-1999, at about 5.45.p.m., the accused was carrying 2 1/2 litters of arrack in a jerry can and was found in front of a rubber estate of one Uthaman. Hence it is alleged that, the accused committed the offence punishable under Section 8(1)&(2) of Abkari Act.. ``` ``` 3.To substantiate the case, the prosecution examined PW1 to PW6. Exts. P1 to P6 are the documents marked on the side of the prosecution. MO1 is the material object. ``` ``` 4.After going through the evidence and documents, the trial Court found that, the accused committed the offence punishable under Section 8(1) & (2) of the Abkari Act. He is sentenced to undergo simple Imprisonment for one year and to ``` **CRL.A.No.1992 OF 2006** 3 ``` pay a fine of Rs, 1,00,000/- In default of payment of fine, the accused is directed to undergo simple imprisonment for a period of three 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 submitted that, the appellant in this case is entitled to the benefit of doubt, because there is no seal in the forwarding note. Moreover, the learned counsel also submitted that, the forwarding note is silent about the person through whom the sample is forwarded to the chemical examiner. ``` ``` 7.The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant. The learned Public Prosecutor also submitted that, there is nothing to interfere with the conviction and sentence imposed by the trial Court. ``` ``` 8.The point for consideration in this case is whether the appellant committed the offence punishable under Section 8(1) & (2) of the Abkari Act. ``` **CRL.A.No.1992 OF 2006** 4 ``` 9.Admittedly, the space for sample seal is seen vacant in Ext.P4, forwarding note. There is a purpose for affixing the seal in forwarding note. If the seal is not there, the benefit will definitely go to the accused because, in such cases the prosecution is not able to prove that the seized article reached in the hands of the analysts. Admittedly, there is no seal in forwarding note. ``` ``` 10. 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 ``` **CRL.A.No.1992 OF 2006** 5 ``` prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.” ``` ``` 11. 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 ``` ``` 12. Similarly, the forwarding note is silent with regard to the name of the person through whom the sample is sent. ``` ``` 13. It is alleged that, in Ext.P4 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. 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 are 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 ``` **CRL.A.No.1992 OF 2006** 6 ``` 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 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 ``` **CRL.A.No.1992 OF 2006** 7 ``` 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 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. ``` ``` 14. In the light of the above discussions, the appellant is ``` ``` 15. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per Judgment dated 20-09-2006 in S.C. No.71/2002 on the file of the Additional Sessions Judge, Fast Track Court-III, Thiruvananthapuram, is set ``` **CRL.A.No.1992 OF 2006** 8 ``` aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. ``` **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **sa**