Ramachandra Pillai v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944 CRL.A NO. 2004 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 519/2002 OF SPECIAL COURT FOR** **ABKARI ACT CASES, KOTTARAKKARA** ## **APPELLANT/ACCUSED:** RAMACHANDRA PILLAI, S/O.GOVINDA PILLAI, CHANDRAVILASOM VEEDU, KOOVAKKADU, KULATHUPUZHA, KOLLAM DISTRICT. BY ADV SRI.SAJU.S.A ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI.SANAL.P.RAJ, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 2004 OF 2007 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.Appeal No. 2004 of 2007 ---------------------------------------------Dated this the 08[th] day of July, 2022** ## **JUDGMENT** The above appeal is filed by the appellant/accused against the conviction and sentence imposed on him as per judgment dated 01.10.2007 in S.C.No.519/2002 on the file of the Additional Sessions Judge (Abkari Act Cases), Kottarakkara. The above case is charge sheeted against the appellant/accused alleging offences punishable under Section 55(a) and (g) of the Abkari Act. 2. The prosecution case in brief is like this: On 22.7.1999 at 6 pm, the accused was in possession for sale of 2 litres of arrack in a black can with a drinking glass and 50 litres of wash in 5 plastic pots concealed in the bushes on the bottom of an Anjili tree standing on the south of Chandravilasom house premises for the purpose of manufacture of arrack at CRL.A NO. 2004 OF 2007 3 Pallamvetti which was detected by CW5 the Sub Inspector of Police, Kulathupuzha and his party. CW5 has seized the contraband articles, arrested the accused, registered Crime No.125/99 of Kulathupuzha Police station, conducted the investigation and laid the charge. 3. To substantiate the case, the prosecution examined, PW1 to PW4. Exts.P1 to P5 are marked as exhibits on the side of the prosecution. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 55(a) and (g) of the Abkari Act. The accused is sentenced to undergo simple imprisonment for two years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, the accused is sentenced to undergo simple imprisonment for three more months each for offence under Section 55(a) and (g) of the Abkari Act. Aggrieved by the conviction and sentence, this Criminal appeal is filed. 4. Heard counsel appearing for the appellant and the Public Prosecutor. CRL.A NO. 2004 OF 2007 4 5. The counsel for the appellant raised two contentions. The counsel submitted that the alleged seizure in this case was on 22.07.1999 and the properties were produced before the court only on 19.08.1999. There is an unexpected delay of 28 days. The counsel submitted that, on that reason itself the accused is entitled the benefit of doubt. The counsel also submitted that the forwarding note is not marked in this case. The counsel submitted that, that is also sufficient to acquit the accused in the light of several judgments of this Court. 6. The Public Prosecutor on the other hand submitted that there is oral and documentary evidence to substantiate the prosecution case and there is nothing to interfere with the conviction and sentence imposed on the appellant. 7. This Court considered the contentions of the appellant and the Public Prosecutor. Admittedly there is a delay of 28 days in producing the contraband before the court. That is fatal to the prosecution. The seizure CRL.A NO. 2004 OF 2007 5 of the contraband in this case was on 22.07.1999. The sample reached the court only on 19.08.1999. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in _**Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)**_ and _**Vikraman v. State of Kerala (2018(1) KLT 822).**_ Relevant portion of the judgment in _**Ravi'**_ s case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the_ CRL.A NO. 2004 OF 2007 6 _forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”_ 8. Moreover, the forwarding note is not marked in this case. The relevancy of the forwarding note in Abkari case is considered by this Court in several judgments. The non production of the same is fatal to the prosecution. 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. 9. 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**_ CRL.A NO. 2004 OF 2007 7 ## _**Prakasan and another v. State of Kerala (2016 KHC**_ ## _**96)**_ . The relevant portion of the judgment in _**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 discussion, I think the appellant in this case is entitled the benefit of doubt and the appeal is to be allowed. Therefore, the Criminal appeal is allowed in the following manner: i. The conviction and sentence imposed on the appellant as per judgment dated 01.10.2007 in Sessions CRL.A NO. 2004 OF 2007 **==> picture [7 x 10] intentionally omitted <==** Case No.519/2002 on the file of the Additional Sessions Judge (Abkari Act Cases), Kottarakkara, is set aside and the appellant is set at liberty. ii. The bail bond, if any, executed by the appellant is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM