Shaji s/o Kunjukutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **CRL.A.No.1632 OF 2005** **AGAINST THE JUDGMENT IN SC 529/2003 DATED 03-09-2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **SHAJI S/O. KUNJUKUTTY, SHIJU BHAVAN, PATHIRICKAL MURI, PATHANAPURAM VILLAGE, PATHANAPURAM TALUK.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSCUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1632/2005 2 ## **JUDGMENT** ## **Dated this the 29th day of June 2020** The above appeal is filed by the accused in Sessions Case No.529 of 2003 on the file of the Additional District & Sessions Judge, (Adhoc), Fast Track Court-I, Pathanamthitta. The S.I. of Police, Koodal, charge sheeted the accused alleging offence punishable under Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that on 5.6.2002, at 7.15 P.M., the Sub Inspector of Police and his party of Koodal Police Station were on patrol duty. The accused was found standing in Ratnagiri Rubber Estate at Vazhapara about 15 meters to the north from VazhaparaRatnagiri road in Ward No.XI of Kalanjoor Panchayat, keeping in his possession a black cannas and a glass. The cannas contained three litres of arrack. Hence it is alleged that the accused committed the offence. Crl.A.No.1632/2005 3 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P10 were marked on the side of the prosecution. MO1 and MO2 are the material objects. Two witnesses were examined on the side of the defence as DW1 and DW2. 4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for two years. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that the detection, investigation, and submission of charge, in this case, is done by the same officer. PW4 Crl.A.No.1632/2005 4 conducted search, seizure, arrest and investigation. The learned counsel for the appellant also submitted that Ext.P9 forwarding note does not contain the seal used by the detecting officer. On this ground, the accused is entitled to the benefit of doubt, the counsel submitted. 7. The learned Public Prosecutor submitted that this is a case in which there is oral and documentary evidence to support the prosecution case. Unless the accused is able to prove prejudice, the prosecution case cannot be rejected simply because the search, seizure, arrest and submission of final report is done by the same officer. 8. The point for consideration in this appeal is whether the accused committed the offence under Section 8(1) and (2) of the Abkari Act. 9. Admittedly, there is no seal in Ext.P9 forwarding note. 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.**_ Crl.A.No.1632/2005 5 ## _**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.”_ 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 simple reason itself, the accused is entitled the benefit of doubt. 10. It is true that the search, seizure, investigation Crl.A.No.1632/2005 6 and submission of the final report is done by PW4. It is to be noted that there is no corroboration to the evidence of PW4 through independent witness because the independent witness turned hostile. If the search, seizure, arrest and submission of final report is done by the same officer, the accused is not entitled the benefit of doubt without there is evidence to show that it will prejudice the accused. But, in this case there is no independent corroboration to the evidence of the official witnesses. In such situation, the search, seizure, arrest and investigation done by the same officer will affect the credibility of the prosecution case. This point is considered by the Supreme Court in **Mohanlal v. State of Punjab [2018 (3) KLT 852 (SC)]** . The relevant portion of the judgment is extracted hereunder : _“25. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this_ Crl.A.No.1632/2005 7 _regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”_ 11. It is true that the above decision is clarified by the Apex Court in **Varinder Kumar v. State of Himachal Pradesh (2019 (1) KHC 828)** . But, in this case there is no independent corroboration to the detecting officer who conducted the detection, investigation, and submission of the final report. 12. In the light of the above discussion, especially because there is no seal in the forwarding note marked in this case, I think the accused is entitled the benefit of Crl.A.No.1632/2005 8 doubt. Hence this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 3.9.2005 on the file of the Additional District & Sessions Judge, (Adhoc), Fast Track Court-I, Pathanamthitta, is set aside. The appellant is set at liberty. Bail bond, if any, executed by him is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **csl**