Ramakrishnan and Radhakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.465 OF 2006** **AGAINST THE JUDGMENT IN SC NO.795/2003 DATED 22-02-2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA** ## **APPELLANT/ACCUSED:** **1 RAMAKRISHNAN, AGED 53 YEARS S/O. KUNJUKUNJU, VARIKKOLIL KIZHAKKATHIL, KARUVATTA THEKKUM MURI, KUMARAPURAM VILLAGE, WARD NO.8, ALAPPUZHA DISTRICT.** **2 RADHAKRISHNAN, AGED 42 YEARS S/O.ACHUTHAN, PUTHEN LEKSHAM VEEDU COLONY,, KARUVATTA THEKKUM MURI, KUMARAPURAM VILLAGE,, WARD NO.6, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.465 of 2006 2** ## **JUDGMENT** ## **Dated this the 9th day of December 2020** … The appellants are the accused in S.C. No.795 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha. 2. The above case is charge sheeted by the Sub Inspector of Police, Haripad Police Station against the appellants alleging offences punishable under Sections 55(a) and (i) of the Abkari Act. 3. The prosecution case is that, on 6.6.2002 at 6.20 p.m., the accused were found in possession of arrack for the purpose of sale on the bund of the punja on the eastern side of Padmavallymadom near Karuvatta market in Ward No.6 of Karuvatta panchayat in Kumarapuram village. Hence it is alleged that, the accused committed the offence. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P10 are the ## **CRL.APPEAL No.465 of 2006 3** documents marked on the side of the prosecution. DW1 and DW2 are the defence witnesses. MO1 to MO4 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) and (i) of the Abkari Act. The appellants are sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1 lakh each. In default of payment of fine, appellants are directed to undergo rigorous imprisonment for three months each. No separate sentence was imposed under Section 55(i) of the Abkari Act. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellants and the learned public prosecutor. 8. The learned counsel for the appellants submitted that, the forwarding note is not marked in this case. The counsel submitted that, there is a delay of 6 days in producing the article before the **CRL.APPEAL No.465 of 2006 4** court and there is absolutely no explanation for the same. 9. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence under sections 55(a) and (i) of the Abkari Act. The public prosecutor submitted that, there is nothing to interfere with the conviction and sentence imposed by the lower court. 10. The point for consideration in this appeal is whether the accused committed the offence under Sections 55(a) and (i) of the Abkari Act ? 11. Admittedly, the forwarding note is not 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. **CRL.APPEAL No.465 of 2006 5** 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 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 authoritative judgments, it **==> picture [445 x 12] intentionally omitted <==** prosecution to prove the forwarding note is fatal to ## **CRL.APPEAL No.465 of 2006 6** the prosecution case. Since the forwarding note is not marked in this case, the benefit of doubt will go in favour of the appellants. 12. Moreover, the alleged seizure of the property was on 6.6.2002. But the property was produced before the court only on 12.6.2002. There is no proper explanation from the side of the prosecution for the delay in producing the property 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_ ## **CRL.APPEAL No.465 of 2006 7** _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 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.”_ Since there is no explanation from the part of the prosecution for the delay in producing the contraband article before the court, the benefit of doubt in this case will go in favour of the appellants. 15. In view of the above discussions, I am of the opinion that, the appellants are entitled the benefit of doubt in this case. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellants as per the judgment dated 22.2.2006 in S.C.No.795 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha are set aside. The **CRL.APPEAL No.465 of 2006 8** appellants are set at liberty. Bail bond, if any, executed by the appellants are cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** pkk **JUDGE**