Unnikrishnan @ Chakrapani S/o Raman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **CRL.A NO. 864 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 229/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA** ## **APPELLANT/ACCUSED:** UNNIKRISHNAN @ CHAKRAPANI S/O RAMAN, MUTTIL, WAYANAD DISTRICT. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, MEENANGADI POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.SANAL P.RAJ, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 864 OF 2007 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.Appeal No. 864 of 2007** **---------------------------------------------Dated this the 27[th] day of June, 2022** ## **JUDGMENT** This appeal is filed by the appellant/accused against the conviction and sentence imposed on him as per judgment dated 27.04.2007 in S.C No.229/2004 on the file of the Additional Sessions Judge (Adhoc) - I, Kalpetta. The above case is charge sheeted against the appellant/accused alleging offences punishable under Section 55(a) of the Abkari Act. 2. The prosecution case in brief is like this: On 28.10.2002 at about 6.30 p.m. the accused was found in possession of 500Ml. illicit arrack in front of the bathroom used by the accused and his family members situated near Primary Health Centre at Vazhavatta, in contravention of the Abkari Act and Rules and thereby committed the above said offence. CRL.A NO. 864 OF 2007 3 3. To substantiate the case, the prosecution examined PW1 to PW6 and marked Exts.P1 to P8. MO1 and MO2 are the Material Objects. 4. After going through the evidences and documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-(Rupees One lakh only) and in default of payment of fine, the accused is directed to undergo rigorous imprisonment for 3 months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard counsel appearing for the appellant and the Public Prosecutor. 6. Counsel appearing for the appellant submitted that there is no seal in Ext.P6 forwarding note and on that simple reason, the entire prosecution will collapse. Moreover, the counsel also submitted that PW5, the Kambalakkad Sub Inspector CRL.A NO. 864 OF 2007 4 of Police investigated the case and he has no jurisdiction to conduct investigation in this case. On that ground also the accused is entitled the benefit of doubt. 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 by the trial court. 7. This Court perused Ext.P6 forwarding note. There is no seal in Ext.P6 forwarding note. In _**Ravi v. State – SI of Police, Meppadi [2018 (5) KHC 352], Smithesh v. State of Kerala [2019 (2) KLT 974]**_ and _**Balachandran v. State of Kerala [2020 (3) KHC 697]**_ , this Court considered the importance of the seal in forwarding note. It will be beneficial to extract the relevant portion of the judgment in _**Ravi's case (supra)**_ : _“9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that_ CRL.A NO. 864 OF 2007 5 _these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note._ _10. In order to support this case, the learned counsel for the appellant has cited a decision held in Krishnan H. v. State, 2015 (1) KHC 822 : 2015 (1) KLD 421 : 2015 (1) KLJ 793 : 2015 (2) KLT SN 11 wherein it was held that 'in cases where no sample seal made available for comparison for ensuring that sample of contraband allegedly seized by the Excise Inspector from accused had reached Chemical Examiner for analysis, it has to be proved that seal affixed on sample is provided to the Chemical Examiner for comparison, in the absence of which there is no assurance that Chemical Examiner examined the sample taken from bulk allegedly seized from the accused'._ _11. Here, the case of the prosecution is that seal on the bottle was in tact and found tally with the samples provided. However, no sample seal seen affixed on the space provided in the copy of the forwarding note. The absence of seal in the space provided in the copy of the forwarding note is sufficient reason for presuming that sample seal is not provided in the original forwarding note. This has been reiterated in Krishnan's case (supra).”_ CRL.A NO. 864 OF 2007 6 ## 8. In _**Smithesh's case (supra)**_ , also this Court observed like this: _“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. The 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.”_ ## 9. Similarly in _**Balachandran's case (supra)**_ also this court considered this point in Paragraph 20 which is extracted hereunder: _“20. In addition to that, the counsel for the appellant submitted that there is no seal in Ext.P5 forwarding note. A perusal of the forwarding note, it is clear that there is no seal affixed in the forwarding note. There is a purpose in affixing the seal in the forwarding note. If the specimen seal is not affixed in the forwarding note, the prosecution_ CRL.A NO. 864 OF 2007 7 _cannot succeed because the links starting from the seizure till it reaches in the hands of the Analyst could not be proved without there is seal in the forwarding note. This is explained in Ravi v. State_ - _S. I. of Police, Meppadi (2018 (5) KHC 352 : 2018 (2) KLD 830 : 2018 (4) KLT SN 56 : 2019 (1)_ - _KLJ 31) and Smithesh v. State of Kerala (2019 KHC 3526 : 2019 (2) KLT 974).”_ 10. For this reason itself, the appellant is entitled the benefit of doubt. Moreover, the investigation in this case is conducted by PW5 who is the Sub Inspector of Kambalakkad Police station whereas the alleged seizure was happened within the jurisdiction of Meenangadi Police Station. PW5 has no jurisdiction to investigate the case. In the light of the above discussion, I think the accused in this case is entitled the benefit of doubt. Therefore, this appeal is allowed. i. The conviction and sentence imposed on the appellants as per judgment dated 27.04.2007 in S.C No.229/2004 on the file of the Additional Sessions CRL.A NO. 864 OF 2007 8 Judge (Adhoc) - I, Kalpetta is set aside and the appellants are set at liberty. ii. The bail bonds, if any, executed by the appellants are cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM