Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 CRL.A NO. 1554 OF 2006 AGAINST THE JUDGMENT IN SC 396/2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, THIRUVANANTHAPURAM APPELLANT/ACCUSED: VIJAYAN, S/O. KRISHNANKUTTY, PUTHUVAL PUTHEN VEEDU, CHENKOTTUKONAM, AYIROOPPARA VILLAGE. BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV. SRI.RENJIT GEORGE (PP) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed challenging the conviction and sentence imposed on the appellant in S.C.No.396/2002 on the file of the Additional Sessions Judge, Fast Track-III, Thiruvananthapuram in a prosecution under Sections 8(1) and (2) of the Abkari Act.
2. The gist of the prosecution case is that on 04.03.1999 while
PW4, and other officials were on patrol duty, they found the appellant/accused in possession of a 5 litre black jerry can containing illicit arrack. The appellant/accused was arrested and the contraband articles were seized.
3. Following investigation of the case, a final report was filed
before the Judicial First Class Court-II, Attingal, from where it was committed to Court of Sessions, Thiruvananthapuram as the case was exclusively triable by a Court of Session. The matter was made over to the Additional Sessions Court, Fast Track-III, Thiruvananthapuram where the charges were framed under Sections 8(1) and (2) of the Abkari Act. The appellant/accused pleaded not guilty and the prosecution led evidence by examining PWs1 to 6, marking Exts.P1 to P9 documents and indentifying MO1 material object. Following the closure of prosecution evidence, the appellant/accused was questioned under Section 313
Cr.P.C, and he denied all the incriminating materials against him. The defence was called to tender evidence as the court found no reason to
acquit the appellant/accused at that stage. However, no defence evidence was adduced. On a consideration of the evidence tendered by the prosecution, the learned Sessions Judge came to the conclusion that the prosecution had succeeded in proving the case against the appellant/accused and therefore convicted him under Sections 8(1) and
(2) of the Abkari Act. After hearing the appellant/accused on the
question of sentence, the learned Sessions Judge imposed a sentence of 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 three months. The period of remand from 04.03.1999 to 31.03.1999 was allowed as set off.
4. Today, when the matter is taken up for consideration, the
learned counsel for the appellant/accused contends that the appeal is to be allowed on a short point without considering any other issue raised in the appeal. He submits that this is a case where the prosecution had failed to produce and mark the Forwarding Note through which the samples of the contraband seized from the appellant/accused were forwarded for chemical analysis and that this is fatal to the prosecution case.
5. I have perused the records and am satisfied that the
prosecution has failed to produce and mark the Forwarding Note together with the seal used in the samples in evidence. Therefore, the prosecution failed to establish any link between the contraband seized from the appellant/accused and the chemical analysis report. This Court considered an identical question in Gireesh v. State of Kerala; 2019
(4) KLT 79, where in paragraphs 14 and 15, it was held as follows:-
“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by P.W.5 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 (1) KLT SN 89 (C.No.96)=2016 (1) KLD 311) and Gopalan v. State of Kerala(2016 (3) KLT SN 24(C.No.16)=2016(2)KLD 469). 15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.”
6. In the light of the above and following the ratio of the
judgment of this Court in Gireesh v. State of Kerala (supra), I am of
the view that the appeal is liable to be allowed. In the light of the finding on this point, it is not necessary to consider any other point. In the result, this appeal is allowed. Conviction and sentence imposed on the appellant/accused in S.C.No.396/02 on the file of the Additional Sessions Judge, Fast Track - III, Thiruvananthapuram will stand set aside and the appellant/accused will stand acquitted. Sd/- GOPINATH P. JUDGE WW