Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 25TH DAY OF JULY 2022 / 3RD SRAVANA, 1944 CRL.A NO. 1951 OF 2007 AGAINST THE JUDGMENT SC 191/2002 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) COURT-I, KOLLAM APPELLANT/ACCUSED: RAVEENDRAN, S/O.JANU PUTHEN PURA, PADINJATTATHIL, NEENDAKARA MURI,, NEENDAKARA VILLAGE. BY ADV SRI.K.SUBASH CHANDRA BOSE RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. OTHER PRESENT: SRI.P.G.GOKULNATH, AMICUS CURIAE, SRI.SANAL.P.RAJ, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.V.KUNHIKRISHNAN, J.
-------------------------------- Criminal Appeal No.1951 of 2007 ---------------------------------------------- Dated this the 25th day of July, 2022
JUDGMENT
The above appeal is filed against the conviction and sentence imposed on the appellant as per judgment dated 29.9.2007 in S.C. No.191/2002 on the file of the Addl. District and Sessions Judge (Adhoc) Court - I, Kollam. The case was chargesheeted alleging offences punishable under Section 55(a) of the Abkari Act.
2. The prosecution case is that on 21.07.1998 at about 11.30 am, the appellant was found in possession of 15 litres of illicit arrack at Dhalavapuram Neendakara muri, Neendakari Village.
3. To substantiate the case, the prosecution examined
PW1 to PW5. Exts.P1 to P8 are the exhibits. (In the judgment
Ext.P8 forwarding note is mentioned as Ext.P7 forwarding note. Actually Ext.P7 is the analysis report). MOI to MOIII are the material objects.
4. After going through the evidence and the
documents, the trial court found that the accused committed the offence under Section 55 of the Abkari Act and he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted
that the forwarding note which is marked as Ext.P8 does not contain the seal. The learned counsel also submitted that, that itself is enough to acquit the accused because there is no link evidence starting from seizure of the contraband articles till it reaches the hands of analyst. The learned counsel also submitted there is a delay of 2 ½ years in conducting the investigation.
7. 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 on the appellant.
8. This Court considered the contentions of the
appellant and the Public Prosecutor. This Court perused Ext.P8 forwarding note. Admittedly there is no seal in Ext.P8 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 Smithesh's case (supra).
“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 there is long delay in conducting the investigation. That will also affect the prosecution case.
10. In Kumaran v. State of Kerala and others [2016
(4) KLT 718] and Cheruvayi Mukundan and others v.
State of Kerala [2016 (3) KLT 532], this Court considered this point. It will be beneficial to extract the relevant portion of the judgment in Kumaran's case (supra):
6. “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 (1) KHC 822 : 2015 (1) KLD 421 : 2015 (1) KLJ 793 : 2015 (2) KLT SN 11 to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on final report was filed before the Court only on 2 started the investigation of this case only on 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”.
11. In the light of the above discussion, I think the appellant is entitled the benefit of doubt. Therefore, the Criminal appeal is allowed in the following manner:
i. The conviction and sentence imposed on the appellant as per judgment dated 29.09.2007 in S.C.No.191/2002 on the file of the Additional District & Sessions Judge (Adhoc) Court - I, Kollam, is set aside and the appellant is set at liberty. ii. The bail bond, if any, executed by the appellant is cancelled. sd/- P.V.KUNHIKRISHNAN JV JUDGE