Rajendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **CRL.A.No.616 OF 2005** **AGAINST THE JUDGMENT IN SC NO.566/2004 DATED 02-03-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA** **AGAINST THE JUDGMENT IN CP NO. 68/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, ADOOR** ## **APPELLANT/ACCUSED:** **RAJENDRAN, S/O.GANGADHARAN,RAJESH BHAVANAM, KADAMPANADU VADAKKU MURI, KADAMPANADU VILLAGE, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.BIMAL K.NATH SMT.DIVYA C BALAN SMT.M.K.SHIMI SRI.SREEVALSAN.V SRI.D.SREENATH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY THE EXCISE INSPECTOR, ADOOR EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PP.D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.616 OF 2005 2 ## **JUDGMENT** ## **Dated this the 23[rd] day of June, 2020** **…** The above appeal is filed by the appellant herein against the judgment in Sessions Case No.566 of 2004 on the file of the Additional District & Sessions Court (Adhoc) Fast Track Court-II, Pathanamthitta. 2. The Excise Inspector, Adoor Excise Range charge sheeted the accused alleging offence punishable under Sections 8(1) & (2), 55(a)(b), and 55(g) of the Abkari Act. 3. The Prosecution case is that the accused had stored in his possession arrack, wash and, implements and utensils for manufacturing arrack. 4. To substantiate the case, the prosecution examined PW1 to PW7. Exhibits P1 to P12 are the documents marked on the side of the prosecution. MO1 to MO4 are the material objects. CRL.APPEAL NO.616 OF 2005 3 5. On going through the evidence and documents, the trial court found that the accused committed the offence under Section 55(g) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for 3 years and a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo Rigorous imprisonment for one year. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 6. The learned Counsel for the appellant submitted that, the prosecution had not produced the forwarding note in this case. He also argued that the final report, in this case, was filed only after about 2 years from the date of the alleged seizure, and there is no explanation from the prosecution for the delay in filing the final report. The Counsel submitted that, on these grounds, the accused is entitled the benefit of doubt. ## 7. The prosecution examined PW1 to PW7. The prosecution case is that the accused stored in his possession arrack, wash and utensils for manufacturing arrack. PW2 is the Excise Inspector who detected the CRL.APPEAL NO.616 OF 2005 4 offence on 22.9.1998 at 4 p.m. while he and his team were on patrol duty. In the course of patrol duty, he received information that, the accused is storing the arrack and wash. He searched the premises of the accused after sending Ext.P1 search memo. According to him, in the presence of the accused and two witnesses, the house was searched. At the north-west corner of the kitchen, a 30 litre aluminum pot containing some liquid was seen. On smelling and tasting a bit of that content, it was satisfied to be wash. Witnesses present were also made to satisfy the same. Thereafter, the Detecting Officer and his party found a barrel of size 200 litre containing some liquid content which on smelling and tasting, found to be wash. A can was also found containing some liquid which on smelling and tasting found to be arrack. The accused was arrested, and the contraband articles were seized. From the wash found in the barrel, 50 ml. was taken as sample in glass bottle of 750 ml. No separate sample was taken from the wash found in the aluminum pot. The remaining wash in the barrel and aluminum pot CRL.APPEAL NO.616 OF 2005 5 was destroyed on the spot. The can with aluminum pot and aluminum vessel and an empty barrel were recovered under the search list. Exhibit P3 is the search list, and Ext.P4 is the mahazar. He identified the material objects in the court. According to the Prosecution, the evidence of Detecting Officer is corroborated with the evidence of other witnesses. 8. The main point raised by the appellant is that, no forwarding note is marked in this case. In Abkari cases, forwarding note is important because the specimen seal used by the Detecting Officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. Forwarding note is one of the links to prove the prosecution case in Abkari cases. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh** **@ Manoj v. State of Kerala** (2019(4) KLT 79), **Vijayan @ Pattalam Vijayan and another v. State of Kerala** (2018 (2) KHC 814) and **Prakasan and another v. State of** CRL.APPEAL NO.616 OF 2005 6 **Kerala** (2016 KHC 96). The relevant portion of the judgment in **Gireesh's case** (supra) is 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 authoritative judgments referred above, it is clear that, the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 9. Another point raised by the appellant is that, CRL.APPEAL NO.616 OF 2005 7 there is delay in conducting the investigation and there was no explanation for the delay. This Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], **Chandran v. State** [2016(4) KLT 727] and **Mukundan v. State of Kerala** [2016(3) KLT 532] observed that, if there is unexplained delay in conducting the investigation in Abkari cases, the accused is entitled the benefit of doubt. The relevant portion of **Kumaran’s case** (supra) is extracted hereunder: _“The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11)=2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on_ CRL.APPEAL NO.616 OF 2005 8 _15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In this case, the seizure of the contraband article was on 22.9.1998. The final report was submitted only on 16.02.2001. There is a delay of more than 2 years in conducting the investigation. There is absolutely no explanation from the prosecution for the delay in conducting the investigation. In the light of the above judgment, the accused is entitled the benefit of doubt on this point also. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 02.03.2005 in Sessions Case No.566 of 2004 on the file of the Additional District & Sessions Court (Adhoc) Fast Track Court-II, CRL.APPEAL NO.616 OF 2005 9 Pathanamthitta is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** **pkk** **P.V.KUNHIKRISHNAN JUDGE**