Sundaresan s/o Sivarman; Sreerani d/o Gopalan v State of Kerala (CRL.A. Nos. 124/2006 & 163/2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **CRL.A.No.124 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 738/2001 DATED 21-12-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/S:** **SUNDARESAN S/O.SIVARAMAN, KUTTIPPURATHU VEEDU, PINACKAL CHERRI,, MAYYANADU VILLAGE.** **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE KOTTIYAM POLICE STATION, (CRIME NO.424/1998)THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SMT. SYLAJA PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2021, ALONG WITH CRL.A.163/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.124 & 163 OF 2006** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **CRL.A.No.163 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 738/2001 DATED 21-12-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 169/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** ## **APPELLANT/S:** **SREERANI D/O. GOPALAN, THAYYIL VEEDU, CHEMMAKKADU, KUZHYAM CHERRI, PERINADU VILLAGE,, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/S:** ## **THE STATE OF KERALA** **REP. BY SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION,, KOALLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2021, ALONG WITH CRL.A.124/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.124 & 163 OF 2006** **3** ## **JUDGMENT** **The above appeals have been filed by accused Nos.2 & 1 respectively against the judgment dated 21.12.2005 of the Additional District and Sessions Judge, Kollam in S.C.No.738/2001. The 1[st] accused was the licencee of toddy shop No.66/1998-99 of Chathannoor Excise Range and the 2[nd] accused was the salesman attached to the said shop.** **2. The case of the prosecution is that the accused were found in possession of toddy mixed with arrack in 20 bottles of 650 ml capacity each and they have thus committed the offences under Sections 55(a)&(i) and 56(b) of the Abkari Act. According to the prosecution, on getting information that toddy mixed with arrack was being sold in the toddy shop licenced to the 1[st] accused, the Police party had conducted a search of the shop in the presence of witnesses. During the search,** **CRL.A.No.124 & 163 OF 2006** **4** **20 bottles of 650 ml each containing some liquid was found on a table in the shop. Since it was suspected that the liquid was toddy mixed with arrack kept for sale, 3 bottles were taken into custody as samples and they were sealed in the presence of the witnesses and one of the bottles was entrusted to the 2[nd] accused after obtaining a receipt. Crime No.424/98 was registered and the seized articles were produced as per property list with the requisition for sending the sample for analysis. On analysis, it was found that the sample contained more than 20% volume by volume of ethyl alcohol. Being satisfied that the accused were engaged in sale of toddy mixed with arrack, a report was filed arraying accused Nos.1 & 2 in the FIR. Officers proceeded with the investigation and collected the details of the licencee by issuing notice to the Assistant Excise Commissioner. After completion of investigation, final report was filed before the Judicial First Class Magistrate Court** **CRL.A.No.124 & 163 OF 2006** **5** **II, Kollam as C.P.No.169/99. The accused appeared before the Magistrate and the case was committed to the Court of Sessions, Kollam, after complying with all the formalities under Sections 207 to 209 Cr.P.C.** **3. The Sessions Court took congnizance of the offences under Section 55(a)&(i) of the Abkari Act and the case was numbered as S.C.No.738/2001 and made over to the Additional Assistant Sessions Court, Kollam for trial and disposal. The case was later withdrawn and made over to Additional District and Sessions Judge (Adhoc) II, Kollam.** **4. By judgment dated 21.12.2005, the Additional District and Sessions Judge (Adhoc) II, Kollam found the accused guilty of the offences and they were convicted. The 1[st] accused was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of 2,000/- under Section 56(b) of the₹ Abkari Act and in defalut of payment of fine, to** **CRL.A.No.124 & 163 OF 2006** **6** **undergo simple imprisonment for 30 days. The 2[nd] accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1,00,000/- for offence under Section 55(a) of the Abkari Act and in default of payment of fine, to undergo rigorous imprisonment for one year. Challenging the above judgment, the accused have filed these appeals.** **5. Heard Sri.C.Rajendran, learned counsel for the appellant in the Crl.Appeal No.124/2006, Sri.B.Mohan Lal, learned counsel for the appellant in Crl.Appeal No.163/2006 and the learned Public Prosecutor for the respondents.** **6. The main contention raised by the appellants in these appeals is that the appeals are liable to be allowed for the sole reason that there is a serious procedural infirmity involved in the prosecution. According to the appellants, the seized articles were liable to be forwarded to the** **CRL.A.No.124 & 163 OF 2006** **7** **Magistrate along with the forwarding note containing the specimen impression of the seal used for sealing the sample. It is evident from records of the case and from the appendix to the judgment that the forwarding note is not available in this case. It is contended that this Court has considered the issue in several cases and held that in the absence of the forwarding note, it is fatal to the prosecution and the prosecution is liable to fail solely on the said issue.** **7. The question whether the non-production of the forwarding note is fatal to the prosecution is no longer** _**res integra**_ **. Learned counsel referred to the decision in** _**Prakasan & Another V. State of Kerala reported in 2016 KHC 96**_ **. This Court has narrated the necessity of the forwarding note for proving the case of the prosecution. Paragraph 11 of the judgment reads thus:** _**“11. Merely because seizure was effected alone is not sufficient to convict the accused for**_ **CRL.A.No.124 & 163 OF 2006** **8** _**the offence alleged. It must be further proved by the prosecution that the articles seized had reached the court in tamper proof condition and the prosecution has to further prove that the chemical analysis report relates to the sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. In this case the specimen impression of the seal used for sealing the sample has not been produced. PW3 had stated that he had used metal seal for sealing the sample and he did not remember the letters in that seal. Further he had no case that he had handed over specimen impression of the seal used for sealing the article to any one. He had further stated that he did not know what happened to the articles after he had entrusted the same to Alathoor Excise Range. According to DW4, PW3 had affixed the seal of the Circle Inspector and he did not know what was written in that seal. Further neither in the seizure mahazar nor in the search list, the nature of seal used was mentioned as well. Quite unfortunately forwarding note was not seen produced or marked in this case. Without forwarding note on file, it is not possible to ascertain as to whether the specimen seal impression of the seal used for sealing the sample has been provided to court or the chemical examiner to satisfy the genuineness of the sample produced. Further it will be seen from the property list produced, though not marked, that they were produced on 10.04.1998 before the magistrate who was in charge of the jurisdictional magistrate and it was directed to be kept in the custody of the excise official with a direction to produce the same on 15.04.1998 before the concerned court. But it is seen from the property list that it was produced before the Judicial First Class Magistrate Court-I, Palakkad, as he was in charge of Judicial First Class Magistrate Court, Alathoor, on that day. It is seen from the property list 'not marked' that though there was a direction to produce the article on**_ **CRL.A.No.124 & 163 OF 2006** **9** _**15.04.1998, it was not seen produced on that day and the magistrate had issued a memo to the Excise Inspector to produce the same, by order dated 16.04.1998 and it is seen that on 17.04.1998 with a new property list, they produced same cannases not produced the entire articles in the same condition it was produced as per the earlier property list, at the time when it was produced on 17.04.1998, the cannases were empty. No permission was obtained from the court for destruction of the articles. But it is seen from Ext.P8 that he had got ratification from the Assistant Excise Commissioner for destroying the toddy. Though it was done as per Rule 8 of the Kerala Abkari Disposal of Confiscation Articles Rule, 1996 and a reading of that Rule will go to show that, it will be applicable only in cases where confiscation has been ordered by the authority. So under the circumstances, it cannot be said that there was no possibility for tampering the articles before the same was produced in court, though the same was produced earlier on 10.04.1998 before the magistrate who was in charge of the jurisdictional magistrate at that time with the direction to produce the same on 15.04.1998, but it was not produced on that day. Later it was produced on getting a memo from the concerned court, that too after destroying the toddy said to have been seized from the vehicle without orders of the court. Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the chemical**_ **CRL.A.No.124 & 163 OF 2006** **10** _**examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused. This was so held in the decision reported in Sasidharan v. State of Kerala [2007 KHC 3404 : 2007 (1) KLT 720], Joseph v. State of Kerala [2009 (4) KHC 537 : 2009 (2) KLD 915 : 2010 (1) KLT SN 18] and Majeedkutty v. The Excise Inspector, Kollam Range [2015(1) KHC 424 : 2015 (1) KLD 262 : 2015 (1) KLT 624]. These aspects were not properly considered by the court below before coming to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt and consequential conviction entered is unsustainable in law and the same is liable to be set aside.”**_ **8. Similar views have been expressed in** **several other judgments of this Court. See** _**Surendran V. State of Kerala [(2021) SCC Online Kerala 592]**_ **,** _**Sajeevan V. State of Kerala [2020 (6) KLT 53]**_ **&** _**Gireesh @ Manoj V. State of Kerala [2019 (4) KLT 79]**_ **. In the light of the law laid down in the abovesaid decisions, with which I completely concur, I find that the appellants are entitled to succeed in these cases.** **CRL.A.No.124 & 163 OF 2006** **11** **In the result, Crl.Appeal Nos. 124/2006 & 163/2006 are allowed and the judgment in S.C.No.738/2001 of the Additional District and Sessions Judge (Adhoc) II, Kollam is set aside.** **Sd/-** **T.R.RAVI, JUDGE** **Pn**