Radha v. State of Kerala

CRL.APPEAL No.1801 of 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **CRL.A.No.1801 OF 2005** **AGAINST THE JUDGMENT IN SC 265/2003 DATED 20-09-2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA** ## **APPELLANT/ACCUSEDS:** **RADHA AGED 37 YEARS D/O.GOPALAN, POTHOTTIL KIZHAKKETHIL,, ADIKKATTUKULANGARA MURI, PALAMEL VILLAGE,, MAVELIKARA.** ## **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR,SENIOR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL No.1801 of 2005 2 ## **JUDGMENT** ## **Dated this the 1st day of December 2020** .. The appellant is the accused in Sessions Case No.265 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha. 2. The above case is charge sheeted by the Excise Inspector, Mavelikkara Excise Range alleging offences punishable under Sections 8(1)(2)and 55(a) of the Abkari Act. 3. The prosecution case is that, on 13.2.2020 at 7.15 a.m., while PW3, the Excise Inspector, Mavelikkara Excise Range was conducting patrol duty along with his party on the western side of the road in front of the house of one Deleena Manzil belonging to one Subhash in Adikattukulangara muri in Palamel village, the accused was found picking a sack from a drainage. On inspection of the sacks, it was found containing 63 litres of arrack in 350 plastic covers each having the capacity of 180 ml. These were kept in three sacks in contravention of **CRL.APPEAL NO.1801 OF 2005 3** the provisions of the Kerala Abkari Act and Rules. Hence, the accused committed the said offence. 4. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P5 are the documents marked on the side of the prosecution. 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 Sections 8(1) and (2) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accued is directed to undergo rigorous imprisonment for a further 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.1801 OF 2005 4** 8. The learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence is made out against the accused. The counsel also submitted that, the forwarding note is not marked in this case. The counsel submitted that, on that ground itself, the accused is entitled the benefit of doubt. The counsel also relied the judgment in Suresh v. State of Kerala [2020(4) KLT 384]. The counsel submitted that, simply because the accused was found lifting the contraband articles from a drainage, there cannot be a presumption that, the accused was in possession or dominion or control of the contraband. The counsel submitted that, for the said reason also the accused is entitled the benefit of doubt. 9. The learned Public Prosecutor submitted that, there is adequate oral evidence to prove the case. The public prosecutor submitted that, there is nothing to interfere with the conviction ## **CRL.APPEAL NO.1801 OF 2005 5** and sentence imposed by the lower court. |10. Admittedly, the forwarding note is not| |---| |marked in this case. The prosecution is relying| |on Ext.P5 chemical analysis report to prove the| |case. To prove Ext.P5 chemical analysis report,| |the prosecution has to prove all the links| |starting from the seizure of the contraband| |article from the party till it reaches in the| |hands of the Analyst. In such circumstances, the| |forwarding note is a material document to be| |produced by the prosecution. The same is not| |produced in this case. For that reason also the| |accused is entitled the benefit of doubt. This| |Court in several decisions considered the| |relevancy of the forwarding note. Some of the| |decisions areGireesh @ Manoj v. State of Kerala| |(2019(4) KLT 79),Vijayan @ Pattalam Vijayan and| |another v. State of Kerala<br>(2018 (2) KHC 814) and| |Prakasan and another v. State of Kerala<br>(2016 KHC| |96). The relevant portion of the judgment in| **CRL.APPEAL NO.1801 OF 2005 6** ## **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 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 forwarding note is fatal. That itself can be a ground for ## **CRL.APPEAL NO.1801 OF 2005 7** acquitting the accused. 11. Moreover, simply because a person is found lifting a sack from a drainage channel, there is no presumption that, the accused was in possession of the same. This Court in **Suresh v. State of Kerala** [2020(4) KLT 384] considered this point. The relevant paragraph of the said judgment is extracted hereunder: “13. The point to be decided is, even if we accept the entire prosecution case whether it can be presumed that the accused was in possession of the illicit liquor. "Possession" is not defined in the Abkari Act. It is well settled by precedents that to constitute possession, the prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. In this case, the Excise Officials found that the accused was lifting a can from a pond, which is situated in the property of PW3. Except for the act of lifting the can from the pond, no other overtact is alleged against the accused in this case. The prosecution has not even a case that the accused was ## **CRL.APPEAL NO.1801 OF 2005 8** perplexed when he saw the Excise Officials. So the evidence available in this case is that the accused was lifting a can from a pond which belongs to a third party. Admittedly, PW3 is the owner of the pond from where this can was taken by the accused. Simply because there is evidence to show that the accused was found lifting the can from a pond belong to PW3 it will not prove "possession". Touching or lifting a contraband article from an open pond by an accused without any other overtacts will not amount to possession. To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor. **CRL.APPEAL NO.1801 OF 2005 9** In the light of the above decision, I think, the accused is entitled the benefit of doubt in the facts of this case. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 20-09-2005 in S.C.No.265 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**