Suku Prasad @ Suku v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **CRL.A.No.1301 OF 2006** **AGAINST THE JUDGMENT IN SC NO.1974/2001 DATED 24-06-2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **SUKU PRASAD @ SUKU, S/O. BALAKRISHNAN, ROADARIKATHU PUTHEN VEEDU, PAMPARANKAVU,, VAZHICHAL VILLAGE, NEYYATTINKARA TALUK.** **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP. BY THE DIRECTOR GENERAL OF PROSECUTION,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1301 of 2006** 2 ## **JUDGMENT** ## **Dated this the 14th day of December 2020** ... The appellant is the accused in Sessions Case No.1974 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara. 2. The above case is charge sheeted by the Excise Inspector, Amaravila Range against the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that, on 30.7.1998 at about 5 p.m. while the Excise Inspector, Amaravila was conducting patrol duty, the accused was found in possession of 10 litre black jerrycan which on examination was found to be filled with arrack. Hence, it is alleged that, the accused committed the **CRL.APPEAL No.1301 of 2006** 3 said offence. 4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P7 are the documents marked on the side of the prosecution. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 58 of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a period of six months. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellant and the learned public prosecutor. **CRL.APPEAL No.1301 of 2006** 4 8. The learned counsel for the appellant submitted that, the forwarding note is not marked in this case. The counsel submitted that, the sample was taken by the court. The counsel submitted that, the court has no business to take sample from the contraband. The counsel also submitted that, a perusal of Ext.P3 will show that, ‘T’ number allotted to the sample taken is ‘T’ 201/98 whereas ‘T’ number received by the Analyst is ‘T’ No.202/98. The prosecution has no proper explanation for the same. Hence, the counsel submitted that, the appellant is entitled the benefit of doubt on these reasons. 9. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant. The public prosecutor submitted **CRL.APPEAL No.1301 of 2006** 5 that, this Court may not interfere with the conviction and sentence imposed by the lower court on technical grounds. 10. The point for consideration in this appeal is whether the appellant committed the offence under Section 58 of the Abkari Act ? 11. Admittedly the forwarding note is not marked in this case. The relevancy of the forwarding note is considered by this Court in several decisions. 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) is extracted hereunder: _“14. There is another lacuna in the prosecution case. The copy of the forwarding_ **CRL.APPEAL No.1301 of 2006** 6 _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 is clear that, the failure on the part of the prosecution to prove the forwarding note is fatal to the prosecution case and the accused is entitled the benefit of doubt on this reason. 12. Moreover, no sample is taken from the contraband by the detecting officer. It was **CRL.APPEAL No.1301 of 2006** 7 taken by PW3, the thondi clerk. The order of the Magistrate allowing him to take sample is also not produced. Further, there is confusion regarding ‘T’ number allotted to the sample. The court has no business at all to collect sample from the property produced. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) considered this point. This Court observed that, the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment is extracted hereunder : _“7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected_ **CRL.APPEAL No.1301 of 2006** 8 _samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Any way, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the detecting officer or why he did not take sample from the 18 cans.”_ 13. In the light of the above discussions, I think, the appellant is entitled the benefit of doubt in this case. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 24.6.2006 in S.C.No.1974 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara are set aside. **CRL.APPEAL No.1301 of 2006** 9 The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**