Vinod K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** ## **CRL.A.No.870 OF 2008** **SC 997/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA** ## **APPELLANT/S:** **VINOD.K. AGED 35 YEARS S/O KRISHNAN,RESIDING AT KALANTAVIDA HOUSE, POST IRINGAL, (VIA) VADAKARA, KOZHIKODE DISTRICT.** **BY ADVS. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SRI THUSHARA V SHRI BIJU J THADIKKAL** **RESPONDENT/S:** **STATE OF KERALA REP.BY (S.H.O. EDACHERRY POLICE STATION IN CRIME NO. 243/03), PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, COCHIN.** ## **OTHER PRESENT:** **SMT. M.K. PUSHPALATHA,SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 870/2008** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 31.8.2003 at about 6.30 p.m., the appellant was found in possession of 24 bottles of Indian made foreign liquor, each bottle having a capacity of 375 ml each, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellant has argued that since no forwarding note was sent along with the samples to the court, the appellant is entitled to benefit of doubt. **Case No. Crl.A 870/2008** -3- 5. Ext.P7 is the forwarding note, which does not contain any date on which it was prepared. It appears that a notice was issued from the Magistrate court concerned on 14.2.2006 directing the Investigating Officer to file a detailed report as to why the forwarding note was not filed before the court. It further appears from the said notice that the samples could not be forwarded to the laboratory for analysis for want of forwarding note. The Sub Inspector of Police concerned had filed a report before the court below stating that there was an inadvertent omission on the part of the predecessor-in-office of the Sub Inspector in preparing the forwarding note. The said report would further show that he prepared a fresh forwarding note and sent it to the court, which was received by the court on ## **Case No. Crl.A 870/2008** -4- 18.2.2006. The above said report of the prosecution is available with the records of the court, though not marked. However, since the above said report would show that no forwarding note was prepared and produced before the court along with the samples and that the forwarding note was prepared and produced before the court only after three years of producing the samples before the court, the said report can be relied upon by the defence without any formal proof as the same was a document produced by the prosecution. 6. The Apex Court in Ramaiah @ Rama v. State of Karnataka [2014(KHC) 4509 : AIR 2014 SC 3388] held that the documents produced by the prosecution but not exhibited/formally proved can be relied upon by the **Case No. Crl.A 870/2008** -5- defence even without formal proof thereto by prosecution, to falsify the prosecution version. The Division Bench of this Court, as per judgment dated 1.8.2006 in Crl.Appeal Nos.97 of 2013 and 185 of 2012, relied on the decision of the Apex Court in Ramaiah @ Rama (supra) and held that even without formally proving the remand report produced by prosecution before the court, the said document could be relied upon by the defence to falsify the prosecution version. 7. The above proposition of law makes it clear that if a document is produced by the prosecution, the same can be looked into by the defence even without formally proving the same by the prosecution. Therefore, since the above said report was produced by the prosecution, the ## **Case No. Crl.A 870/2008** -6- defence will be justified in relying on the said report. The notice issued by the court is dated 14.2.2006 and the forwarding note was produced along with the above said report before the court on 18.2.2006. The incident was on 31.8.2003. This would show that the forwarding note was not prepared and produced before the court along with the samples and Ext.P7 forwarding note was produced before the court only after three years of sending of the samples to the court. 8. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:- “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical **Case No. Crl.A 870/2008** -7- Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 9. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. Since no forwarding note was produced before the court along with the samples, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband **Case No. Crl.A 870/2008** seized from the appellant. In view of the above, there is no satisfactory link evidence to connect the appellant with the samples analysed in the laboratory and consequently, the conviction and sentence passed by the court below on the basis of Ext.P5 Certificate of Chemical Analysis cannot be sustained and consequently, I set aside the same. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. sd ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/