Full Judgment
CRL.A.No.1461 OF 2005 1
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.1461 OF 2005 AGAINST THE JUDGMENT IN SC 673/2004 DATED 30-07-2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT II, PATHANAMTHITTA APPELLANT/ACCUSED: SADASIVAN @ PARA PARAKKOOTTATHIL VEETTIL, PARAKKOOTTAM, KOODAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.HARIDAS RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE KOODAL POLICE STATION. R1-2 BY 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.1461 OF 2005 2
JUDGMENT
Dated this the 30th day of June 2020 The above appeal is filed by the accused in S.C.No.673/2004 on the file of the Additional District and Sessions Judge, (Adhoc) Fast Track Court II, Pathanamthitta. The Sub Inspector of Police, Koodal Police Station filed the charge sheet against the accused alleging the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act.
2. The prosecution case is that the accused was seen
offering for sale about 3½ litres of arrack, stored in a 5 litre black can on the eastern courtyard of his residential house by name Parakkottathil Veedu at a place called Parakottam in Koodal Muri and village on 7.6.2003 at 7.25 pm.
3. After going through the prosecution's documents, the trial court framed a charge under Sections 8(1) and (2) of the Abkari Act.
4. To substantiate the case, the prosecution examined PW1 to PW3. Exts.P1 to P8 are the exhibits marked by the prosecution. MO1 is the material object.
5. After going through the evidence and the documents produced by the prosecution, the trial court found that the accused committed the offence under Section 8(2) of the Abkari CRL.A.No.1461 OF 2005 3
Act. The accused is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor.
7. The learned counsel for the appellant submitted that no
forwarding note is marked in this case. He also argued that there is only interested testimony of PW2 and PW3 to prove the search and seizure. Hence he submitted that the accused is entitled to the benefit of doubt.
8. The learned Public Prosecutor submitted that the prosecution had proved the case in the light of the oral and documentary evidence.
9. The point for consideration is whether the accused committed the offence under Section 8(2) of the Kerala Abkari Act.
10. Altogether three witnesses were examined by the
prosecution. PW1 is the independent witness, who turned hostile to the prosecution. PW2 is the Police Constable, who accompanied PW3, the detecting officer at the time of search and CRL.A.No.1461 OF 2005 4
seizure. The case of PW1 is that on 7.6.2003 at 7.10 pm, he and his team were on patrol duty. He received information about the sale of arrack, and he proceeded to that place. At that time, the accused was standing at that place, holding a black can on his hand. When the can was seized and searched, it contains about 3½ liters of arrack. The accused was arrested, and the contraband articles were seized after taking samples.
11. 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.
12. 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) 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 CRL.A.No.1461 OF 2005 5
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)).”
13. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused.
14. The prosecutor submitted that Ext.P8 is the forwarding
letter received from the Judicial First Class Magistrate's Court I, Pathanamthitta, and the same will show that the property was forwarded to the Chemical Examiner. But that is only a report from the Judicial First Class Magistrate Court to the Sessions Court. The same is not the forwarding note. Therefore, non production of the forwarding note is fatal in this case.
15. In addition to this, the learned counsel for the
appellant submitted that PW2 and PW3 has not identified the accused from the dock. The counsel relied the judgment of this Court in Mohammed v. State of Kerala (2002 KHC 969) and Vayalali Girishan and others v. State of Kerala (2016 KHC CRL.A.No.1461 OF 2005 6
204). The relevant portion of the judgment in Mohammed's case is extracted hereunder: The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts.
16. The relevant portion in Vayalali Girishan's case
(supra) is extracted hereunder: “We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude.”
CRL.A.No.1461 OF 2005 7
17. Admittedly, in this case, PW2 and PW3 have not
identified the accused from the dock. No such endorsement to that effect by the trial judge also. The learned Public Prosecutor vehemently argued that the identity of the accused is not disputed in the trial. But in the above judgments, this court observed that it is the duty of the prosecution to see that the witness identifies the accused from the dock at the time of trial. In the light of the above judgments, I think, the accused is entitled to the benefit of doubt on this ground also. Hence this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 30.7.2005 in S.C.No.673/2004 on the file of the Additional District and Sessions Judge (Ad Hoc) Fast Track Court II, Pathanamthitta 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 ab