Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **CRL.A.No.1908 OF 2005** **AGAINST THE JUDGMENT IN SC 175/2005 DATED 22-09-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-FAST TRACK II, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **RAJAN** **S/O KOCHURAMAN,PUTHENVILAYIL VEEDU, KONNAPPARA,, KONNI THAZHAM MURI, DO. VILLAGE,, KOZHENCHERRY TALUK,, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.C.K.SAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PP. SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **CRL.A.No.1908 OF 2005** ## **JUDGMENT** ## **Dated this the 28th day of May 2020** This Criminal Appeal is filed by the accused in Sessions Case No.175/2005 of the Additional District and Sessions Judge (Adhoc), Fast Track-II, Pathanamthitta. Above case is charge sheeted by the Sub Inspector of Police, Konni Police Station against the appellant herein, alleging offence punishable under Section 55(a) & (b) of the Kerala Abkari Act. 2. The prosecution case is that, the accused was found in possession, for the purpose of sale, about 4 litres of arrack stored in a 5 litre black can and a glass tumbler for pouring and supplying the arrack on the rubber estate of Fr.K.T.Mathai, Kochumuriyil Veedu at the place called Konnappara in Konni Thazham-muri village. Hence it is alleged that the accused committed the offence. ## **CRL.A.No.1908 OF 2005** 3. To substantiate the case, prosecution examined PW1 to PW4. Exhibits P1 to P6 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material documents marked by the prosecution. 4. On going through the evidence and documents, the trial court found that, the accused committed the offence under Section 8(1) of the Kerala Abkari Act, which is punishable under Section 8(2) of the said Act. The accused is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo imprisonment of one year. Aggrieved by the conviction and sentence, this appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant ## **CRL.A.No.1908 OF 2005** submitted that, even if the entire allegations against the accused are accepted in whole, no offence under Sections 8(1) and (2) of the Abkari Act is made out against the accused. According to the counsel, conviction is under Sections 8(1) and (2) of the Abkari Act, in which the prosecution has to prove that the seized article is arrack. For that purpose it is the duty of the prosecution to prove all links starting from seizure till it reaches in the hands of the analyst. Learned counsel for the appellant submitted that, the forwarding note, which is an important document to be marked by the prosecution to prove the links starting from seizure till it reaches in the hands of the analyst, is not produced in this case. Since forwarding note is not marked, there is no evidence about the seal affixed in the sample bottle. The counsel also submitted that, the arrest memo is not produced. According to the counsel, the case of the accused is that, there is no seizure and **5** ## **CRL.A.No.1908 OF 2005** arrest as alleged by the prosecution. When the arrest itself is challenged, it is the duty of the prosecution to prove the arrest, contended by the counsel. 7. Learned counsel relied upon the decisions of this Court in _**Sathyan v.State of Kerala [2015(1) KHC 269], Vijayan @ Pattalam Vijayan and Another v. State of Kerala [2018(2) KHC 814], Prakasan and Another v. State of Kerala [2016 KHC 96] and Gopalan v. State of Kerala [2016 KHC 541].**_ 8. The Public Prosecutor submitted that, here is a case where the possession of arrack by the accused is proved based on the oral evidence of the official witnesses. According to the Public Prosecutor, there is nothing to disbelieve the evidence of official witnesses. Therefore, non production of the arrest memo and non production of forwarding note is not material in this case, because there is oral evidence to prove the arrest **6** ## **CRL.A.No.1908 OF 2005** and also to prove that the seized article reached in the hands of analyst. 9. After hearing both sides, I think there is force in the arguments of the accused. Here is a case where the prosecution want to prove an offence under Sections 8 (1) and (2)of the Abkari Act. To prove an offence under Sections 8(1) and (2) of the Act, the prosecution has to establish that the accused was found in possession of arrack, which is a prohibited item. To prove that the seized article is arrack, the prosecution is relying Ext.P5 chemical analysis. For relying Ext.P5 chemical analysis report, the prosecution should establish that the seized article reached in the hands of the analyst which resulted in Ext.P5. In other words, the analyst analysed the sample seized from the possession of the accused. In such circumstances, it is the duty of the prosecution to prove all the links starting from seizure till it reaches in the hands of the analyst. **7** ## **CRL.A.No.1908 OF 2005** 10. In _**Gopalan's case**_ (supra) this Court observed that, non production of forwarding note is fatal to prosecution. This Court observed that, in the absence of forwarding note made available before the Court it can be said that, prosecution is unable to establish the link connecting the accused with the contraband seized and sample analysed in the laboratory. Similarly in _**Prakashan's case**_ (supra) this Court observed that, if forwarding note is not marked and produced, in such case it cannot be said that, prosecution has proved beyond reasonable doubt that the articles were produced in the Court in the same condition in which it was seized and it reached in the chemical examiner's lab in a tamper proof condition and in the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. ## **CRL.A.No.1908 OF 2005** 11. In _**Vijayan's case**_ (supra) this Court reiterated the principle regarding production of material documents by the prosecution. This Court observed that absence of forwarding note in abkari case is fatal to the prosecution. The same principle was laid down by this Court in _**Gireesh v. State of Kerala [2019 (4) KLT 79]**_ . Therefore on this single point, I think the appellant, accused is entitled the benefit of doubt. 12. In addition to this, the counsel also submitted that, arrest memo is not produced in this case. According to the counsel, this is an important document regarding the fact of arrest and if the same is not produced, it is fatal to the prosecution, especially, the cases in which, arrest and seizure is disputed by the accused. In this case, the appellant disputed the arrest of the accused and the seizure of contraband from his possession. 13. In such circumstances, non production of **9** ## **CRL.A.No.1908 OF 2005** arrest memo is fatal to the prosecution. This Court in _**Sathyan v. State of Kerala [2015(1) KHC 269]**_ held that the non production of arrest memo by the prosecution is fatal to the prosecution case. This Court in _**Ramankutty v.Excise Inspector [2013 (3) KHC 308]**_ , the same principle was laid down. Since the arrest memo is not produced in this case, I think the accused is entitled benefit of doubt, in the light of the dictum laid down by this Court in the above judgments and also because of the facts that the arrest and seizure is challenged by the accused. 14. Hence, the accused in this case is entitled the benefit doubt, because the prosecution miserably failed to prove that the sample seized reached in the hands of analyst. Moreover, the prosecution has not produced the arrest memo, especially when the arrest and seizure is disputed by the accused. For these grounds the accused is entitled the benefit of doubt. ## **CRL.A.No.1908 OF 2005** Hence, this appeal is allowed. The conviction and sentence imposed by the appellant as per judgment dated 22.09.2005 in S.C. No.175/2005 on the file of Additional District and Sessions Judge (Adhoc), Fast Track-II, Pathanamthitta is set aside. The appellant is set at liberty. The bail bond if any executed stands cancelled. ## **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** ## **hmh**