Velu @ Velayudhan S/o Kalakurumban v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **CRL.A.No.2033 OF 2005** **AGAINST THE JUDGMENT IN SC NO.389/2005 DATED 22.11.2005 OF THE III ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT NO.1, THRISSUR** **AGAINST THE JUDGMENT IN CP NO.42/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT III, THRISSUR.** ## **APPELLANT/ACCUSED:** **VELU @ VELAYUDHAN S/O.KALAKURUMBAN, ATTIKKARA VEETTIL, VELLAKKARITHADAM DESOM, MANNAMANGALAM VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.P.G.SURESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.2033 OF 2005 2 ## **JUDGMENT** ## **Dated this the 23[rd] day of June, 2020** … The above appeal is filed by the accused against the judgment dated 22.11.2005 in Sessions Case No.389 of 2005 on the file of the III Additional Sessions Court (Adhoc) Fast Track Court No.1, Thrissur. 2. The Excise Inspector, Thrissur Excise Range charge sheeted the accused alleging offence punishable under Sections 8(1) and (2) of the Abkari Act. 3. The Prosecution case is that the accused was found in possession of about 9 liter of arrack on the road lying in front of the tea shop of PW1 with door No.VII/432 of Puthur Grama Panchayat situated at Vellakkarithadam desom in Mandhamangalam Village at 6.20 p.m. on 11.07.2002. Hence, it is alleged that the accused committed the offence. 4. To substantiate the case, the prosecution CRL.APPEAL NO.2033 OF 2005 3 examined PW1 to PW6. Exhibits P1 to P8 are the documents marked on the side of the prosecution. MO1 is the material object. 5. On going through the evidence and documents, the trial court found that, the accused has committed the offence punishable under Section 58 of the Abkari Act. The accused is sentenced to undergo Rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for a period of three months. Aggrieved by the conviction and sentence, the accused filed this Crl.Appeal. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned Counsel for the appellant submitted that, the prosecution had not produced the forwarding note in this case. The Counsel submitted that, in the absence of forwarding note, there is no guarantee that, the seized material reached in the hands of the Analyst. The Counsel also submitted that, there is a CRL.APPEAL NO.2033 OF 2005 4 delay of about two years in conducting the investigation in the case and on these grounds the appellant is entitled the benefit of doubt. 8. The learned Public Prosecutor submitted that, there is nothing to interfere with the judgment of the trial court. 9. After hearing both sides, the point to be considered is whether the accused committed the offence under Section 58 of the Abkari Act, as alleged. 10. The first point raised by the counsel for the appellant is that, the prosecution has not produced the forwarding note in this case. In Abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. Forwarding note is one of the links to prove the prosecution case in Abkari cases. This Court in several decisions considered the relevancy of the CRL.APPEAL NO.2033 OF 2005 5 forwarding note. 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) extracted hereunder: _“14. There is another lacuna in the prosecution case. The copy of the forwarding 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 authoritative judgments referred CRL.APPEAL NO.2033 OF 2005 6 above, it is clear that, the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 11. The next point raised by the Counsel for the appellant is that, there is delay in conducting the investigation. 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, if there is unexplained delay in conducting the investigation in Abkari cases, the accused is entitled the benefit of doubt. The relevant portion of **Kumaran’s case** (supra) is extracted hereunder: _“The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11)=2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the court held that long delay in conducting the investigation, in the_ CRL.APPEAL NO.2033 OF 2005 7 _absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In this case, the seizure of the contraband article was on 11.07.2002. The complaint was filed only on 10.06.2004. There is a delay of about 2 years in conducting the investigation. There is absolutely no explanation from the prosecution for the delay in conducting the investigation. In the light of the above judgment, the accused is entitled to the benefit of doubt on this point also. CRL.APPEAL NO.2033 OF 2005 8 Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 22.11.2005 in Sessions Case No.389 of 2005 of the III Additional Sessions Judge (Adhoc) Fast Track Court No.1, Thrissur 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**