CRL.A NO. 2371 OF 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 2371 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 857/2004 OF ADDITIONAL
DISTRICT COURT (ADHOC), ALAPPUZHA
APPELLANT/S:
VASUDEVAN
S/O.NARAYAAN, KOCHUPUTHENPARAMBU VEEDU, KARUVATTA
THEKKU MURI,, WARD NO.8, KARUVATTA PANCHAYATH,
KARUVATTA VILLAGE, ALAPPUZHA DISTRICT.
BY ADV SRI.M.R.ARUN KUMAR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
SMT.ROSHINI.M.D, AMICUS CURIAE, SMT.VIDYA KURIAKOSE,
PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2371 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No. 2371 of 2006
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Dated this the 24th day of June, 2022
JUDGMENT
This Criminal Appeal is filed against the conviction and sentence imposed on the appellant as per the judgment dated 21.11.2006 in SC No. 857/2004 on the file of the Addl.Sessions Judge, Fast Track (Adhoc-1), Alappuzha. The above case is chargesheeted against the appellant alleging offences punishable under Secs. 8(1) & (2) and 55(a) of the Abkari Act.
2. The prosecution version of the occurrence is as follows : The Sub Inspector of Haripad Police Station received information at about 6 pm on 6.10.2003 that arrack had been kept and sold in the shop belongs to the accused located on the northern side of Railway Station, Karuvatta. On that information, the Sub Inspector of Police visited the said shop of the accused at about 6.30 pm. The accused was present there and he was found transferring some liquid from a bottle CRL.A NO. 2371 OF 2006 3 of 750 ml capacity held by him into a glass. The Sub Inspector received the bottle held by the accused and it was checked. The bottle was found to contain a liquid of 500 ml which on smelling and tasting was ascertained to be contraband arrack and the accused was arrested at 6.50 pm at the spot. His body was searched which resulted in the recovery of Rs.410/- from the pocket of the shirt worn by him. On the subsequent search of the bunk, the Sub Inspector recovered four empty bottles 750 ml each capacity with smell of arrack. After preparing necessary sample and sealing the residue in the bottle, a seizure mahazar was prepared to evidence the recovery of arrack and other articles and the amount, which was attested by the Sub Inspector and witnesses. Thereafter, arrested accused and the articles seized were removed to Haripad Police Station and it was based on that a case was registered as Cr.No. 343/2003 under Secs. 8(1) and (2) and 55(a) and (i) of the Abkari Act. Later the sample was sent to the laboratory for analysis and a report was obtained. After completion of the investigation charge sheet was filed before the court on CRL.A NO. 2371 OF 2006 4 the allegation that the accused was found in possession of 500 ml of arrack for sale in contravention of the prohibition of the Abkari Act. The accused thereby alleged to be committed the offences punishable under Secs. 8(1) and (2) and 55(a) of the Abkari Act.
3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P5 are the exhibits. MO1 to MO6 are the material objects. After going through the evidence and documents, the trial court found that the accused committed the offences under Secs. 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only). In default of payment of fine, the accused is directed to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
4. It is submitted by the learned Public Prosecutor that the appellant is no more. Since it is an appeal filed against the conviction and sentence in which the sentence includes the CRL.A NO. 2371 OF 2006 5 fine of Rs.1,00,000/-, this Court decided to consider this matter on merit. Adv.Roshini M.D. is appointed as amicus curiae.
5. Heard the amicus curiae and the Public Prosecutor.
6. Amicus curiae submitted that the forwarding note is not marked and that itself will collapse the entire prosecution case. On perusal of records, it is clear that the forwarding note is not marked. If that is the case, it is fatal. The forwarding note is an important document, which is to be marked in Abkari cases. The importance of forwarding note is considered by this Court in several judgments. In Prakashan and anr. v. State of Kerala [2016 KHC 96], Vijayan @ Pattalam Vijayan and anr. v. State of Kerala [2018 (2) KLT 814], Gireesh @ Manoj v. State of Kerala [2019 (4) KLT 79] and Balachandaran v. State of Kerala [2020 (3) KHC 697], this point is considered in detail. It will be beneficial to extract the relevant portion of the judgment in Gireesh's case (supra).
"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the CRL.A NO. 2371 OF 2006 6 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))."
7. In the light of the above dictum, I think the appellant is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The sentence of fine imposed on the deceased appellant as per the judgment dated 29.09.2006 in S.C. No. 857/2004 on the file of the Addl.Sessions Judge Fast Track (Adhoc-I) Alappuzha is set aside. The sentence of imprisonment imposed on the appellant is abated.
The bail bonds, if any, executed by the appellant, are cancelled.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS