Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942 CRL.A.No.336 OF 2007 AGAINST THE JUDGMENT IN SC 1394/2004 OF ADDITIONAL DISTRICT & SESSIONS COURT(ADHOC)III, KOLLAM AGAINST CP 108/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA APPELLANT/ACCUSED: MANUAL, S/O. PHILIP, MANUAL BHAVANAM, THEKKUMBHAGAM VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR
SRI. D. CHANDRASENAN -SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.336/07 -:2:-
JUDGMENT
Dated this the 6th day of October, 2020 The appellant was the accused in S.C. No.1394 of 2004 on
the files of the Additional District & Sessions Court (Adhoc)-III, Kollam. He was found guilty under Section 8(2) of the Abkari Act, 1077 and sentenced to undergo simple imprisonment for a period of two years and also to pay a fine of Rs.1,00,000/- in default of payment of fine to undergo a further simple imprisonment for three months. Appellants impugn the aforesaid
Judgment.
2. The prosecution case was that on 15.5.2002 at 5.30
p.m., the preventive officer attached to Karunagappally Excise Range found the accused transporting two bottles of coloured arrack of 750 ml each and half portion of another bottle of 750 ml, in a white plastic kit along a public road. On interception, it was realised that the bottle contained coloured arrack and hence, after taking samples in accordance with law, arrested the accused. After complying with the due requirements of law, the case was charge-sheeted and committed to the court of sessions for trial.
Crl.Appeal No.336/07 -:3:-
3. After the accused pleaded not guilty to the charges
levelled against him, the prosecution examined 8 witnesses as PWs 1 to 8 (appendix mentions only 7 witnesses) and marked Exts.P1 to P9 apart from material objects MO1 to MO3 in their
attempt to prove the prosecution case. The learned Sessions Judge after analysing the evidence and circumstances of the case, came to the conclusion that the prosecution had proved its case beyond reasonable doubt and found the accused guilty. Thereafter a sentence of imprisonment and fine, as mentioned earlier, was imposed upon the accused.
4. The learned counsel for the accused/appellant
strenuously submits that the order of conviction and sentence imposed upon the accused is totally unwarranted especially in the light of the fact that there is no material evidence adduced by the prosecution to connect the accused with the guilt. It was also submitted that there was no independent evidence to prove the prosecution case and the conclusion arrived at by the Sessions Court was totally erroneous. The learned counsel also submitted that the sample seal was totally absent in Ext.P7 forwarding note and that absence, as held by this Court on numerous occasions, is fatal to the prosecution case.
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5. Sri.D.Chandrasenan, learned Senior Public Prosecutor on the other hand submitted that the prosecution had clearly proved its case against the accused and the forwarding note was also
marked as Ext.P7. He fairly concedes that the sample seal is absent in the forwarding note. The learned Public Prosecutor however submitted that such a contention was never taken up by the accused in the trial Court and it cannot be now argued that the absence of seal causes prejudice to the accused. It was also pointed out by the learned Public Prosecutor that there was no delay in the mahazar and consequent report to the court which itself shows that the investigation was carried out with alacrity. He also submitted that there was no reason for the detaining officer to falsely foist a case against the accused and in the absence of any such peculiar instance being pointed out, the circumstances of the case does not warrant any interference with the judgment impugned.
6. I have considered the rival contentions. The prosecution has taken pains to establish the guilt of the accused. As many as 8 witnesses have been examined. PW4 was the officer who detected the case and arrested the accused as per Ext.P2 arrest memo. PW6 conducted the investigation and recorded the statements of the witnesses, while PW7 laid the final report after
Crl.Appeal No.336/07 -:5:- obtaining Ext.P9 certificate which stated that the sample contained 38.84% by volume of ethyl alcohol. PW8 is the chemical examiner who issued Ext.P9.
7. Even though all steps have been taken by the prosecution to prove the guilt of the accused, it is seen that Ext.P7 forwarding note does not contain the specimen seal
impression. Absence of specimen seal impression on Ext.P7 breaks the link between procurement of the sample and the consequent sending of the same to the chemical analyst. The evidentiary value of Ext.P7 therefore becomes suspect on account of which Ext.P9 chemical analysis certificate loses its
evidentiary value or significance. The chain of events that resulted in the sample being collected and sent for analysis must be clearly proved by the prosecution and for that purpose, the forwarding note as well as the sample seal on the forwarding note are essential components. (See Prakasan and Another v. State of Kerala (2016 (1) KLT SN 96) Balachandran v. State
of Kerala (2020 (4) KLT 137). When the specimen seal impression of the seal used for sealing the article produced in court is absent in the forwarding note, the prosecution case must fail as it becomes doubtful as to whether the article that reached the chemical examiner was the same article that was seized. Crl.Appeal No.336/07 -:6:-
8. Even though the prosecution tried its level best to bring
home the guilt of the accused, in the absence of the seal on the forwarding note, the prosecution cannot succeed however much other evidence are available. In such circumstances, I find that the accused is entitled to the benefit of doubt and the prosecution has failed in proving the guilt of the accused beyond reasonable doubt.
9. In the result, the appeal is allowed. The order of
conviction and sentence imposed against the accused in S.C. No.1394 of 2004 on the files of the Additional District and Sessions Judge (Adhoc)-III, Kollam is hereby set aside and the accused/appellant is acquitted. The bail bond executed by the accused shall stand cancelled. Sd/- BECHU KURIAN THOMAS JUDGE vps /TRUE COPY/ PS TO JUDGE