Revi v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **CRL.A.No.1577 OF 2005** **AGAINST THE JUDGMENT IN SC NO.533/2003 DATED 17-08-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT JUDGE (ADHOC), FAST TRACK COURT-1, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **REVI, S/O. PODIYAN REMYA BHAVAN, ADUPPUPARA, POOTHAMKARA MURI,ENADIMANGALAM VILLAGE, ADOOR TALUK.** **BY ADVS. SRI.BIJI MATHEW SRI.S.BALAKRISHNAN CHETTIAR SRI.MANU RAMACHANDRAN SRI.C.PRAKASH** ## **RESPONDENT/STATE(COMPLAINANT)** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1577 OF 2005 2 ## **J U D G M E N T** ## **Dated this the 26[th] day of June, 2020** **…** The above appeal is filed by the appellant/accused challenging the judgment dated 17.08.2005 in Sessions Case No.533 of 2003 of the Additional District & Sessions Judge (Adhoc) Fast Track Court-1, Pathanamthitta. 2. The case is charge sheeted by the Excise Inspector, Adoor against the appellant alleging offence punishable under Section 8(1) & (2) of the Abkari Act. 3. The Prosecution case, in brief, is that the accused was found in possession of 3 litres of arrack on 18.10.2000 at about 3.45 p.m. 4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P9 are the documents marked on the side of the prosecution. MO1 is the material objects. **==> picture [426 x 12] intentionally omitted <==** CRL.APPEAL NO.1577 OF 2005 3 documents, the trial court found that, the accused committed the offence under Sections 8(1) & (2) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo Simple Imprisonment for a further period of 2 years. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 6. Heard. 7. Altogether, six witnesses were examined on the side of the prosecution. PW1 is the Excise Inspector who detected the offence. PW2 is the Excise official who accompanied PW1. PW3 and PW5 are the Investigating Officers. PW4 is the Independent witness examined by the prosecution. 8. The point for consideration, in this case, is whether accused committed the offence under Sections 8(1) & (2) of the Abkari Act. 9. Exhibit P6 is the forwarding note in this case. It is contended that there is no seal in Ext.P6. Forwarding note is one of the vital documents in CRL.APPEAL NO.1577 OF 2005 4 Abkari cases. In Abkari cases, it is the duty of the prosecution to prove all the links starting from the seizure of the contraband article until it reaches in the hands of the Analyst. 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: _“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.”_ CRL.APPEAL NO.1577 OF 2005 5 In the light of the above authoritative judgments, it is clear that, the lack of seal in the forwarding note is fatal to the prosecution. If there is no seal in the forwarding note, there is no guarantee that, the seized articles are reached in the hands of the Analyst. Therefore, for this reason, the accused is entitled the benefit of doubt. 10. Another contention raised by the learned counsel for the appellant is that the alleged seizure of the article was on 18.10.2000. But, the sample was received by the Analyst only on 05.06.2001. There was no explanation for the said delay on the part of the prosecution. The Analyst received the sample on 05.06.2001 through one M.K.Bose, Excise Guard, who was not examined in this case. Prosecution has no case that, under whose custody the sample bottle was during the period from 18.05.2000 to 05.06.2001. Without examining M.K.Bose, Excise Guard, the prosecution cannot prove the same. Therefore, non-examination of the above named Excise Guard is fatal in this case. In **Madhavan v. State of Kerala** (2019 (4) KLT 18), this CRL.APPEAL NO.1577 OF 2005 6 ## Court observed like this: _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner._ _Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey Crl.A.No.2785/2008 10 v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ Here in this case, as the prosecution failed to prove all the links starting from the date of seizure of the contraband article till it reaches in the hands of the Analyst, in the light of the above authoritative CRL.APPEAL NO.1577 OF 2005 7 judgment, I think, the appellant is entitled the benefit of doubt. 11. In addition to this, it is argued that, Ext.P6 forwarding note is silent with regard to the name of the person with whom the sample was sent. In this case, the thondy clerk or the person who took the sample to the Analyst was 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_ CRL.APPEAL NO.1577 OF 2005 8 _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 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_ CRL.APPEAL NO.1577 OF 2005 9 _consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 12. In the light of the above discussions, I think, the accused is entitled the benefit of doubt. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 17.08.2005 in Sessions Case No.533 of 2003 on the file of the Additional District & Sessions Judge (Adhoc) Fast Track Court-1, Pathanamthitta, are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **pkk** **Sd/P.V.KUNHIKRISHNAN JUDGE**