Yasodha v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 CRL.A NO. 732 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENTSC 59/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM ``` ## **`APPELLANT/S:`** ``` YASODHA KARINJAVAYAL, KADINAMKULAM DESOM, K0DINAMKULAM VILLAGE,THIRUVANANTHAPURAM TALUK BY ADV SRI.P.M.HABEEB ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, CIME NO. 23 OF 1999 OF EXCISE RANGE, KAZHAKUTTOM BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` 0 SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A.No. 732 of 2008 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.No. 732 of 2008 ============================================================= Dated this the 29[th ] day of August, 2022 ## **JUDGMENT** The appellant is the accused in SC No.59 of 2003 on the files of the Additional District & Sessions Judge Fast Tracl-I, Thiruvananthapuram. The above case is chargesheeted against the appellant alleging offences punishable under Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that on 27.04.1999 at 12.15 pm, the accused was found in possession of ten litres of arrack in a ten liter volume cannas near the Kadinamkulam Panchayat Office and thus committed the offence. 3. To substantiate the case prosecution examined PW1 to PW5. Exts.P1 to P6 are the exhibits marked from the side of prosecution. After going through the evidence and the -3- Crl.A.No. 732 of 2008 documents, the trial court found that the accused committed the offence under Section 8(1) and (2) of the Abkari Act. The accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. Heard the counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that the sample is taken from the Court and in the light of the decision of this Court that procedure is not correct. The counsel also submitted that in Ext.P5 forwarding note, there is no seal and it is silent about the person with whom the sample is sent to the analyst. The counsel submitted that in the light of those contentions, the appellant is entitled the benefit of doubt. The -4- Crl.A.No. 732 of 2008 Public Prosecutor, on the other hand, submitted that there is oral and documentary evidence to justify the conviction and sentence imposed by the trial court. 6. The point to be decided in this appeal is whether the accused committed the offence alleged by the prosecution. 7. This Court perused Ext.P5 forwarding note. Admittedly, there is no seal in the forwarding note. If there is no seal in the forwarding note, that is fatal to the prosecution. The importance of the seal in forwarding note is considered by this Court in several decisions. The prosecution has to prove all the links starting from seizure of contraband till it reaches in the hands of the analyst. To prove the same, the seal in the forwarding note is important. In **Ravi. v. State – S.I. of Police, Meppadi [2018(5) KHC 352]** and **Smithesh v. State of Kerala** **[2019(2) KLT 974]** this point is considered in detail. The -5- Crl.A.No. 732 of 2008 relevant portion of the judgment in **Smithesh’s** case (supra) is extracted hereunder: “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. 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.” 8. Moreover, the forwarding note is silent with regard to the name of the person with whom the sample is sent to the analyst. That is also vital. 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 -6- Crl.A.No. 732 of 2008 ## 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. 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 -7- Crl.A.No. 732 of 2008 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- roof 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 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.” 9. Moreover, the sample is taken from the Court. The Court has no business to take sample from the property. This point is considered by this Court in **Smithesh v. State of** -8- Crl.A.No. 732 of 2008 ## **Kerala [2019(2) KLT 974]** . The relevant paragraph of the above decision is extracted hereunder: _“7_ . Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans.” 10. In the light of the above discussion, I think the benefit of doubt will go to the appellant. Therefore, this appeal is to be allowed. -9- Crl.A.No. 732 of 2008 The appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 15.03.2008 in SC No.59 of 2003 on the file of Additional District & Sessions Judge Fast Track-I, Thiruvananthapuram, is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is cancelled. sd/- **P.V.KUNHIKRISHNAN JUDGE** das