Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942 CRL.A.No.1001 OF 2005 AGAINST THE JUDGMENT IN SC 337/2002 DATED 17-05-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)FAST TRACK COURT-II, PATHANAMTHITTA AGAINST THE ORDER/JUDGMENT IN CP 37/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA APPELLANT/ACCUSED: BABU S/O.RAGHAVAN, PATHEKKAR VEEDU, KARACKAKUZHI, KOODAL MURI, KOODAL VILLAGE. BY ADVS. SMT.BINDU SREEKUMAR SRI.S.SAROJ MOHAN RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1001/2005 2
JUDGMENT
Dated this the 30th day of June 2020 The appellant is the accused in Sessions Case No.337 of 2002 on the file of the Additional District & Sessions Judge (Adhoc), Fast Track Court-II, Pathanamthitta. The S.I. of Police, Koodal Police Station filed charge sheet against the appellant/accused alleging offence punishable under Section 8(1) and (2) of the Abkari Act.
2. The prosecution case is that on 30.12.2001, at 5.45 P.M.,
the accused was found in possession of 4 litres of arrack and it is also the case of the prosecution that he was conducting sale of arrack on the jeep road in AVT rubber estate at about 750 metres east of Karakkakkuzhi in Koodal Muri and Village. The court framed a charge under Section 8(1) and (2) of the Abkari Act against the accused.
3. To substantiate the case, prosecution examined PW1 to
PW5. Exts.P1 to P10 are marked on the side of the prosecution. Two witnesses were examined on the side of the defence as DW1 and DW2. MO1 to MO3 are the material objects.
4. After going through the evidence and the documents, the court below found that the accused committed the offence under Crl.A.No.1001/2005 3
Section 8(1) and (2) of the Abkari Act. The accused was sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- with default sentence of one year. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.
5. The learned counsel appearing for the appellant submitted that there is no forwarding note marked in this case.
6. The learned Public Prosecutor submitted that there is oral and documentary evidence to substantiate the case. Therefore, this court may not interfere with the conviction and sentence imposed by the lower court.
7. The point for consideration in this appeal is whether the accused committed the offence under Section 8(1) and (2) of the Abkari Act.
8. Admittedly, the forwarding note is not marked in this case.
In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases.
Crl.A.No.1001/2005 4
9. This court, in several decisions considered the
relevancy of the forwarding note. Some of the decisions are Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96). The relevant portion of the judgment in Gireesh's case (supra) is extracted hereunder:
“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 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 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”
10. The documents produced in this case include Ext.P10.
Ext.P10 is a letter from the Judicial First Class Magistrate Court-I, Pathanamthitta, to the Sessions Court. This is not the forwarding note. The purpose of the forwarding note is elaborately considered by this court in the judgments cited above. Simply because the Crl.A.No.1001/2005 5 contraband article is seized and produced before the court immediately, the prosecution will not succeed unless it is proved that the seized articles reached in the hands of the analyst. In such circumstances, the forwarding note is vital.
11. In the light of the discussion made above, I think that the accused is entitled the benefit of doubt. Hence, this Crl.Appeal is allowed. The conviction and sentence
imposed on the appellant as per the judgment dated 17.5.2005 in Sessions Case No.337 of 2002 on the file of the Additional District & Sessions Judge, (Adhoc), Fast Track Court-II, Pathanamthitta is set aside. The appellant is set at liberty. Bail bond, if any, executed by him is cancelled. Sd/- P.V.KUNHIKRISHNAN JUDGE csl