Thettathu Mohanan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **CRL.A.No.1828 OF 2005** **AGAINST THE JUDGMENT IN SC NO.1104/2004 DATED 27-09-2005 OF THE SESSIONS COURT, THALASSERY** ## **APPELLANT/ACCUSED:** **THETTATHU MOHANAN S/O.GOVINDAN, KALLYAD AMSOM, OORATHUR DESOM, TALIPARAMBA TALUK,KANNUR DISTRICT.** ## **BY ADV. SRI.P.K.RAVI SANKAR** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.B.JAYASURYA, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1828 OF 2005 2 ## **JUDGMENT** **Dated this the 17[th] day of June, 2020** **…** **The above appeal is filed by the accused in Sessions Case No.1104 of 2004 on the file of the Additional Sessions Court (Adhoc-11), Thalassery.** **2. The above case is charge sheeted by the Excise Inspector, Sreekandapuram Excise Range office against the appellant alleging offence punishable under Section 55(g) of the Abkari Act.** **3. The prosecution case is that, on 9.1.2002 at about 5.10 p.m., the Preventive Officer attached to the Sreekandapuram Excise Range Office, and his party found that the accused possessed wash for the purpose of manufacturing illicit arrack in 2 plastic pots of 10 litres in the cashew garden on the southern side of his house at the place Oorathur and thereby he committed the aforesaid offence.** **4. To substantiate the case, the prosecution examined PW1 to PW3. Exhibits P1 to P5 are the exhibits marked on the side of the prosecution. On** CRL.APPEAL NO.1828 OF 2005 3 **going through the evidence and documents, the trial court found that the accused has committed the offence under Section 55(g) of the Abkari Act, and he is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for three months. Aggrieved by the above conviction and sentence, the appellant filed this Crl.Appeal.** **5. Heard the learned counsel for the appellant and the learned Public Prosecutor.** **6. The learned counsel for the appellant submitted that, in this case, there is a long delay in completing the investigation. He also submitted that the property list is not produced in this case. The Counsel also submitted that in Ext.P4 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. On these grounds, the appellant is entitled the benefit of doubt.** **7. The learned Public Prosecutor submitted that, based on the oral and documentary evidence, the** CRL.APPEAL NO.1828 OF 2005 4 **offence against the accused is proved, and there is nothing to interfere with the conviction and sentence imposed in this case.** **8. After hearing both sides, the point to be decided is whether the offence under Section 55(g) of the Abkari Act is made out in this case against the accused.** **9. It is alleged that, in Ext.P4 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are 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.**_ CRL.APPEAL NO.1828 OF 2005 5 _**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 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**_ CRL.APPEAL NO.1828 OF 2005 6 _**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 consequently, the conviction and sentence passed by the courts below cannot be sustained.**_ **10. It is further alleged that, the property list is not produced in this case. This Court, in several decisions, held that to prove a prosecution under Abakari Act, the property list is vital documents. This Court observed that, the prosecution has to prove that the seized article reached in the hands of Analyst and for that purpose property list is a relevant document. The Court can get corroboration about the oral evidence of official witness regarding the date on which the property reached the Court only through property list. Therefore, non production of the same is fatal to the prosecution.** **11. In this case, the alleged offence happened on** **9.1.2002, and the final report filed only on** **28.1.2003. The learned Counsel for the appellant** CRL.APPEAL NO.1828 OF 2005 7 **submitted that, there is no explanation for the delay in investigation. I think, there is some force in the arguments of the appellant. This Court in Kumaran v. State of Kerala [2016 (4) KLT 718], Chandran v. State [2016(4) KLT 727] and Mukundan v. State of Kerala [2016(3) KLT 532] observed that, the delay in investigation is fatal in Abakari cases.** **12. In this case, even though samples were taken from the spot, the balance contraband article is not produced before the Court. In paragraph 11 of the judgment of the court below, the court below found that, the contraband articles should have been produced before the court. Thereafter, the court observed that, non production of the wash before the court is not fatal to the prosecution case. I do not think that, the finding of the trial court is correct. The prosecution has to prove that the seized artcles reached in the hands of Analyst. For the purpose of verifying the seal, the production of the contraband articles before the court is material. At least an inventory is to be produced. According to me, non** CRL.APPEAL NO.1828 OF 2005 8 **production of the balance contraband article before** **the Court will also prejudice the interest of the accused. On this ground also, the accused is entitled to the benefit of doubt.** **13. In the light of the above discussions, the accused is entitled to the benefit of doubt.** **Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 27.09.2005 in Sessions Case No.1104 of 2004 on the file of the Sessions Court, Thalassery is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled.** **pkk** **Sd/P.V.KUNHIKRISHNAN JUDGE**