IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
CRL.A.No.1167 OF 2007
AGAINST THE JUDGMENT DATED 31-05-2007 IN SC 76/2007 OF ADDITIONAL
SESSIONS COURT (ADHOC)-I, KOTTAYAM
APPELLANTS ACCUSED 1 & 2 :
1 SALIM RAWTHER, S/O. KUNJUMEERAN RAWTHER,
AGED 46 YEARS, NADUVILADATHU HOUSE,
PATHANADU, KANGAZHA.
2 JINESH MENON, S/O.RADHAKRISHNA MENON,
AGED 25, IRADATHUMADAM, MANNANICKAL,
KANGAZHA.
BY ADV. SRI.M.P.MADHAVANKUTTY
RESPONDENT/ COMPLAINANT :
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.MAYA M.N.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1167 OF 2007
2
JUDGMENT
Dated this the 7th day of January 2021 The appellant challenges the conviction and sentence imposed in SC.No.76/2007 on the files of the Additional Sessions Court (Ad hoc)-I, Kottayam.
2. The prosecution case was that on 30.06.2006, at 7.00 a.m., the accused were found in possession of 10 litres of arrack kept for sale in the house belonging to the first accused. PW5, the Sub Inspector of Police detected the offence and arrested the accused. After investigation and filing of final report by PW3, the case was committed to the Sessions Court.
3. In order to prove the prosecution case, the prosecution examined PWs 1 to 7 and marked Exts.P1 to P6. Ext.X1 was marked as a court exhibit while the defence examined DW1 and marked Exts.D1 and D2. After analysing the evidence adduced, the learned Sessions Judge came to the conclusion that the accused had committed the offence under Section 55(a) & 55(i) of the Abkari Act and imposed a sentence of rigorous imprisonment for one year and a fine of Rs.1,00,000/- to each of the accused, in default of payment of CRL.A.No.1167 OF 2007 3 fine, to undergo rigorous imprisonment for six months.
4. Aggrieved by the conviction and sentence, the accused had preferred this appeal under Section 374 of the Cr.P.C.
5. I have heard the learned counsel for the appellant Adv.Sri.M.P.Madhavankutty as well as the learned Public Prosecutor Adv.Smt.Maya M.N.
6. The learned counsel for the appellant submits that one crucial factor alone is sufficient to acquit the accused which aspect, according to him, was not noted by the learned Sessions Judge. The learned counsel invited my attention to the failure of prosecution to mark the forwarding note during trial, which, according to him is fatal to the prosecution.
7. A perusal of the evidence adduced in the trial court shows that though the forwarding note was not marked in evidence, it was produced before court as seen from the files. However, since the forwarding note has not been marked in evidence, it is as good as not available for consideration for the court. The forwarding note stands not proved in the case. It is settled that failure to prove the forwarding note, before the court during evidence, is fatal to the prosecution case rendering the entire prosecution story, doubtful. Reliance can profitably be made to the decisions in Sadasivan @ CRL.A.No.1167 OF 2007 4 Para v. State of Kerala and Another [2020 KHC 478], in Gireesh @ Manoj v. State of Kerala [2019 (4) KLT 79] and in Vijayan @ Pattalam Vijayan and Another v. State of Kerala [2018 (2) KHC 814]. In the aforesaid cases, it has been pointed out that in the absence of the forwarding note, the link that connects the sample taken from the contraband and send for analysis to the chemical examiner gets snapped, thereby rendering the sample send for analysis as one without sanctity. The absence of forwarding note erodes into the credibility of the sample send for analysis. In such circumstances, the accused is entitled to the benefit of doubt.
8. Even though the learned Public Prosecutor requests for an opportunity to mark the forwarding note by remanding the case, I am not inclined to do so considering that 14 years have elapsed since the alleged date of occurrence. Though the forwarding note is seen in the files, the same was not marked in evidence and hence this Court cannot rely upon the same.
9. Since the learned counsel for the appellant relied upon the sole point of absence of forwarding note, during his argument, I refrain from considering the other points that arises in the instant case. Accordingly, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the appellant is liable to be CRL.A.No.1167 OF 2007 5 acquitted.
In view of the aforesaid discussion, I set aside the conviction and sentence imposed upon the accused in SC.No.76/2007 on the files of the Additional Sessions Court (Ad hoc)-I, Kottayam and acquit the accused. The bail bond furnished, if any, shall stand cancelled and the accused shall be set at liberty. The fine amount, if remitted, shall also be refunded.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE RKM