Remesh Babu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 CRL.A NO. 1465 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENTSC 857/2001 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC), KOLLAM CP 49/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`KARUNAGAPPALLY`** ## **`APPELLANT/S:`** ``` REMESH BABU S/O.KUTTAPPAN, SREE KRISHNA BHAVANAM,, NAMBARUVIKALA MURI, KARUNAGAPPALLY, KOLLAM. BY ADV SRI.DILEEP P.PILLAI ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT.JINU ANTONY, AMICUS CURIAE, SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A.No. 1465 of 2007 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.No. 1465 of 2007 ============================================================= Dated this the 22[nd] day of August, 2022 ## **JUDGMENT** The appellant is the accused in SC No.857 of 2001 on the file of the Additional District & Sessions Judge (Adhoc) I, Kollam. The above case is chargesheeted against the appellant alleging offences punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 03.10.1999 at 7.30 am, the accused was found in possession of 750 ml of arrack at veliyil mukku, kochalumood junction, Karunagappally Village and thus the accused committed the offfence. 3. To substantiate the case prosecution examined PW1 to PW7. Exts.P1 to P8 are the exhibits marked from the side of prosecution. MO1 is the material object. After going through -3- Crl.A.No. 1465 of 2007 the evidence and the documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. When this appeal came up for consideration, there was no representation for the appellant. Therefore, Adv.Jinu Antony is appointed as the Amicus Curiae. Heard the learned Amicus Curiae and the learned Public Prosecutor. 5. The Amicus Curiae submitted that there is no seal in the forwarding note and that is fatal to the prosecution. The Amicus Curaie also submitted that forwarding note is also silent about the person through whom it is sent to the analyst. On these two grounds, the accused is entitled acquittal, is the -4- Crl.A.No. 1465 of 2007 submission. The Public Prosecutor, on the other hand, submitted that there is oral and documentary evidence to prove that the accused committed the offence and therefore, there is nothing to interfere with the conviction and sentence imposed by the trial court. 6. The point to be decided in this case is whether the accused committed the offence under Section 55(a) of the Abkari Act. 7. This Court perused Ext.P8 forwarding note. Admittedly, there is no seal in it. The importance of the seal in forwarding note is considered by this Court in **Ravi. v. State – S.I. of Police, Meppadi [2018(5) KHC 352]** and **Smithesh v. State of Kerala [2019(2) KLT 974]** . The relevant portion of the judgment in **Smithesh’s** case (supra) is extracted hereunder: -5- Crl.A.No. 1465 of 2007 “8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.” 8. Moreover, the forwarding note is silent with regard to the name of the person with whom the sample is sent. That is also fatal to the prosecution. The prosecution has to prove that the seized article reached in the hands of the analyst. All the links starting from seizure till it reaches in the hands of the analyst is to be proved by the analyst. -6- Crl.A.No. 1465 of 2007 9. In Ext.P8 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in **Kumaran v. State of Kerala [2016 (4) KLT 718]** held as follows: _“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007.It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned_ -7- Crl.A.No. 1465 of 2007 _Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ -8- Crl.A.No. 1465 of 2007 10. In the light of the above discussion, I think the benefit of doubt will go to the appellant. Therefore, this appeal is to be allowed. The appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 17.07.2007 in SC No.857 of 2001 by the Additional District & Sessions Judge (Adhoc) I, Kollam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the accused is cancelled. sd/- **P.V.KUNHIKRISHNAN JUDGE** das