Radha @ Thankamani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **CRL.A.No.807 OF 2007** **SC 111/2005 DATED 27-04-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **CP 55/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM** ## **APPELLANT/S:** **==> picture [84 x 80] intentionally omitted <==** **RADHA @ THANKAMANI, D/O. KAMALAKSHI, ALUVILA VEEDU, IDAVATTOM CHERRY, PERINADU VILLAGE.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENT/S:** **==> picture [84 x 61] intentionally omitted <==** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **GP C.K.PRASAD** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.807 OF 2007 -2- ## **JUDGMENT** Dated this the 19[th] day of February, 2020 **The accused in Sessions Case No.111 of 2005 of the Additional Sessions Court (Ad hoc)-II, Kollam, who stands convicted and sentenced for the offence under Section 8 (1) of the Abkari Act, is the appellant herein.** **2. The prosecution allegation, which led to the conviction of the appellant, are as follows:-** **On 24.02.2002, PW1, the Sub Inspector of Police, Kundara had received information regarding the sale of arrack by the accused in the property on the western side of her residence. Thereupon, PW1, along with police team, including a woman police constable, reached the spot around 11.30 a.m. The police party found the accused holding a bottle and a glass and** CRL.A.No.807 OF 2007 -3- **accosted her. On examination, the bottle was found to contain 450 ml of arrack. On further interrogation, the accused revealed that, she had concealed 10 bottles of arrack in her property and from the spot shown by the accused, 10 bottles of 1 litre capacity each was dug out. Thereupon, PW1 examined all the bottles and found them to be containing arrack. 200 ml of arrack was drawn as sample from the bottle in the possession of the accused and was sealed in the presence of the witnesses. Thereafter, Ext.P1 Mahazar was prepared; the accused arrested from the spot and Ext.P2 FIR registered. The sample was produced in court along with the list of material objects on 13.03.2002. Even though crime was registered and final report filed for the offences under Section 55 (a) and (i) of the Abkari Act, the trial court rightly framed charge for the offence under Section 8(1) of the Abkari** CRL.A.No.807 OF 2007 -4- **Act. In order to prove the prosecution case, PW1 to PW4 were examined, Exts. P1 to P5 marked and MO I to MO IV identified** **3. The accused, while questioned under Section 313 Cr.P.C, denied the incriminating circumstances brought out against her. The accused further stated that she was undergoing treatment for Blood Cancer at Regional Cancer Centre, Thiruvananthapuram and it was while waiting at the bus stand on 24.02.2002, that she was summoned to the police station and the case foisted upon her. The trial court, on consideration of the evidence, found that the prosecution had succeeded in establishing the guilt of the accused. The accused was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/under Section 8(2) of the Abkari Act.** **4. Heard Sri. Vinoy Varghese Kallummottil,** CRL.A.No.807 OF 2007 -5- **learned Counsel for the appellant and Sri.C.K.Prasad, learned Public Prosecutor.** **5. The learned Counsel for the appellant assails the findings in the impugned judgment mainly on the ground that the trial court had failed to consider the impact of the inordinate delay in producing the sample drawn from the contraband before the court. It is submitted that the sample taken on 24.02.2002 was produced before the court only on 13.3.2002 and no reasonable explanation for the delay was given by PW1; the investigating officer. It is submitted that the only explanation offered was that, though the sample was produced before court on 24.02.2002, the same was not accepted for reason of a strike by the Government employees and that the sample could thereafter be produced only on 13.03.2002. It is pointed out that such an explanation, even without examination of the** CRL.A.No.807 OF 2007 -6- **Thondi Clerk of the court or the Police Constable who was stated to have carried the sample to the court, should not have been accepted by the trial court. The next contention is regarding the failure on the part of the prosecution to produce and mark the forwarding note, which, along with the sample seal affixed on it, would prove that the sample drawn was the sample produced before the court and forwarded for chemical analysis.** **6. The learned Public Prosecutor attempted to support the impugned judgment by submitting that an acceptable explanation has been offered by the investigating officer for the delay in producing the sample and that the list of material objects having been produced, the failure to produce the forwarding note and mark the same in evidence, will not materially effect in the trial.** **7. On perusal of the evidence of PW1, it is** CRL.A.No.807 OF 2007 -7- **seen that specific questions were put to him during cross-examination regarding the delay in producing the sample before the court. His only explanation was that the property list was prepared on 24.02.2002 and a policeman deputed for producing the sample before the court along** **with the property list. That, since the Government employees were on strike on 24.02.2002, the sample was not accepted and the sample was later produced only on 13.03.2002.** **8. The law is well settled that unexplained delay in production of the sample in an abkari case, would be fatal to the prosecution (see** _**Vengadan Narayanan @ Achootty v. State of Kerala**_ _**[2019 (3) KLJ 862]**_ **). As far as the instant case is concerned, there is complete absence of explanation regarding the delay of almost 20 days and in my considered opinion, the** **unexplained delay has vitiated the trial.** CRL.A.No.807 OF 2007 -8- **9. As far as the contention regarding the non-production and marking of the forwarding note is concerned, it is well settled that in the absence of the forwarding note, the court will not be in a position to ensure that the sample drawn from the contraband is the sample produced before the court and forwarded to the chemical analyst. This Court in** _**Gireesh v. State of Kerala [2019 (4) KLT 79]**_ **has held that absence of forwarding note is fatal to the prosecution. In** _**Sukumaran v. State of Kerala [ILR 2019 (4) Ker.70]**_ **, it was held that the prosecution should prove all the links starting from seizure of sample till it reaches the chemical examiner. In the case at hand, these crucial links are conspicuously absent. The absence of the forwarding note makes it impossible for the chemical examiner to compare the seal affixed on the sample with the sample seal affixed on the** CRL.A.No.807 OF 2007 -9- **forwarding note and ensure that the sample received was the one drawn from the contraband seized. Without the forwarding note, even the trial court will not be in a position to ensure the genuineness of the sample. In the light of these glaring defects, which cuts at the root of the prosecution case, I am not in a position to uphold the findings of the trial court.** **In the result, the impugned judgment is set aside and the appellant is acquitted. The bail bond executed by the appellant will stand cancelled.** Sd/- **V.G.ARUN JUDGE** Scl/19.02.2020