Shaji, Firose and Shameer v. State of Kerala (Criminal Appeal Nos. 906 and 1029 of 2007)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 ``` ``` CRL.A NO. 906 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 436/2006 OF III ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT - I, THRISSUR ``` ## **`APPELLANTS/ACCUSED:`** ``` 1SHAJI, S/O.PUTHIYAVEETTIL MUHAMMED, KOORKENCHERY, THRISSUR. 2FIROSE, S/O.PUTHENPEEDIKAYIL KUNJUMON AMBADI LANE, KOORKANCHERY, THRISSUR. 3SHAMEER, S/O.EDAVAZHIPPURATH MUHAMMED KOORKANCHERY, THRISSUR. BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2022, ALONG WITH CRL.A.1029/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA Nos.906 & 1029 of 2007** **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 CRL.A NO. 1029 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 436/2006 OF III ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT - I, THRISSUR ``` ## **`APPELLANT/ACCUSED NO.2:`** ``` FIROSE, S/O.PUTHENPEEDIKAYIL KUNJUMON, AMBADI LANE, KOORKKANCHERY, THRISSUR. BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. SRI.SANAL RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2022, ALONG WITH CRL.A.906/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA Nos.906 & 1029 of 2007** **3** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal Nos.906 & 1029 of 2007 ---------------------------------------------Dated this the 05[th ] day of August, 2022** ## **JUDGMENT** These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. 2. The accused Nos.1 to 3 in S.C.No.436/2006 on the file of the III Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur filed Criminal Appeal No.906/2007 and the 2[nd] accused in the same case filed Criminal Appeal No.1029/2007. The above case is charge-sheeted against the appellants alleging offences punishable under Sections 55(b), (g), (i) and 58 of the Abkari Act. 3. The prosecution case is that the accused persons were found transporting illicit liquor unlawfully manufactured in the house with Door No.II/388 of Vellangallur Panchayat, and the utensils used for the purpose of manufacturing illicit liquor was found in a van with Reg. No.KL-08/A7447 from the courtyard of the said house situated at Veliyanad Desom in Vadakumkara Village at 5.45 am on **CRA Nos.906 & 1029 of 2007** **4** 25.03.2004 and the said offences which were committed in contravention of the Abkari Act were detected by PW6, the Circle Inspector of Police, Iritti, and party. Hence it is alleged that the accused committed the offence. 4. To substantiate the case, the prosecution examined PW1 to PW8. Exts.P1 to P10 are the exhibits. MO1 to MO60 are the material objects. After going through the evidence and the documents, the trial court found that the appellants committed the offence under Section 58 of the Abkari Act and they were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, the appellants were directed to undergo simple imprisonment for a period of three months. Aggrieved by the conviction and sentence, these Criminal Appeals are filed. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that the forwarding note and the property list are not produced in this case. The learned counsel also submitted that since the same is not produced, the prosecution failed to **CRA Nos.906 & 1029 of 2007** **5** prove all the links starting from seizure of the contraband till it reaches the hands of the analyst. The learned counsel further submitted that as per the evidence of PW6, 785 bottles were seized, but only 597 alone were produced. 7. The Public Prosecutor on the other hand submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the appellants. 8. This Court considered the contentions of the appellants and the Public Prosecutor. It is an admitted fact that the forwarding note and the property list are not produced. 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 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 **CRA Nos.906 & 1029 of 2007** **6** 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)).” 9. Similarly, the non production of property list is also fatal to the prosecution. The relevancy of property list in abkari cases is considered by this Court in several judgments. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that **CRA Nos.906 & 1029 of 2007** **7** the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked by the prosecution, that itself is a ground for acquittal. 10. In the light of the above discussion, I think the prosecution failed to establish the offence alleged against the appellants. The appellants are entitled the benefit of doubt. **8** ## **CRA Nos.906 & 1029 of 2007** Therefore, the Criminal appeals are allowed in the following manner: - i. The conviction and sentence imposed on the appellants as per judgment dated 25.05.2007 in S.C.No.436/2006 on the file of the III Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur is set aside and the appellants are set at liberty. - ii. The bail bonds, if any, executed by the appellants are cancelled. JV sd/- **P.V.KUNHIKRISHNAN JUDGE**