Vasu vs State Of Kerala
2021 Latest Caselaw 10948 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                         CRL.A.No.2322 OF 2008

   AGAINST THE ORDER/JUDGMENT IN SC 17/2006 DATED 24-09-2008 OF
   ADDITIONAL DISTRICT AND SESSIONS (ADHOC) FAST TRACK COURT I,
                          PATHANAMTHITTA


APPELLANTS:

               VASU
               AGED 56 YEARS
               S/O.CHATHAN, ANJILIMOOTTIL VADKKETHIL VEEDU,,
               MANTHUKA MURI, KULANADA VILLAGE,, KOZHENCHERRY TALUK,
               PATHANAMTHITTA DISTRICT.

               BY ADV. SRI.V.SETHUNATH

RESPONDENTS:

               STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF
               KERALA, ERNAKULAM.



               SRI K B UDAYAKUMAR SR PP

            THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
  07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2322 OF 2008              2

                              JUDGMENT

This is an appeal filed u/s 374(2) of the Criminal Procedure

Code (Cr.P.C) against the judgment of conviction and sentence passed by

the Additional Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta

in SC No.17/2006 dated 24th September, 2008.

2. The accused/appellant faced trial for an offence

committed u/s 8 (1) and (2) of the Abkari Act. The prosecution case in

short is that on 28/11/2002 at 9.00 a.m, PW2 Excise Preventive Officer

and others while on patrol duty, found the accused coming from the

opposite side carrying a sack bundle on his shoulders. When they

reached near the Nettoor Bridge in the Kulanada-venmani road and on

seeing the excise party, the accused tried to escape and ran away. The

accused was intercepted and on inspection of the sack bundle carried by

him, a 35 litre white jerry can with certain liquid was found inside. On

examination of the liquid by smelling and tasting, it was convinced that

the same was arrack. Accordingly, the accused was arrested and the

contraband article was seized. From the jerry can, 300ml of liquid was

taken as sample in a bottle and the same was sealed and packed in the

presence of witness, who was examined as PW3. Thereafter, PW4 Excise

Preventive Officer registered Ext.P4 Occurrence Report (OR) against the

accused. The accused and the seized articles were produced before the

Magistrate court on the same day. The sample was sent for chemical

analysis and after chemical analysis, the chemical analyst's report was

received which was marked as Ext.P6. The chemical analysis report

shows that the sample contained 31.22% volume of ethyl alcohol. After

completing investigation, the Investigating Officer, PW5, filed a final

report before the learned Magistrate. The learned Magistrate committed

the case for trial to the Court of Sessions.

3. The accused appeared before the court below. After

hearing both sides, the court below framed charge against the accused

under Sections 8(1) and (2) of the Abkari Act. The charge was read over

and explained to the accused who pleaded not guilty.

4. The prosecution examined PW1 to PW5 and Exts.P1 to

P6 were marked. MO1 and MO2 were identified. On completing the

prosecution evidence, the accused was questioned u/s 313 of the Cr.P.C.

On the side of the defence, a witnesses was examined as DW1. After

trial, the court below found that the accused has committed the offence

under Section 8(1) and punishable under Section 8(2) of the Abkari Act.

Accordingly, he was convicted for the said offence. The accused was

sentenced to undergo rigorous imprisonment for one year and half year

and to pay a fine of Rs. 1,00,000/-, in default, to suffer rigorous

imprisonment for a further period of six months as per the impugned

judgment. The said judgment is under challenge in this appeal.

5. Heard the learned counsel for the appellant/accused,

Sri.V.Sethunath as well as the learned Public Prosecutor,

Sri.K.B.Udayakumar.

6. The learned counsel for the appellant assailed the

finding of the guilt passed by the court below against the appellant as

illegal and unsustainable mainly on two grounds. The first ground urged

by the learned counsel is that the forwarding note for sending the

sample for chemical analysis was not produced or marked in evidence.

The second ground urged by the learned counsel is that Ext.P1 Mahazar

does not contain any sample seal and Ext.P5, the list of 'Thondi' articles,

does not show that there was any label on the MO1 can or sample bottle.

7. The first and foremost argument advanced by the

learned counsel for the appellant is regarding the non production of the

forwarding note. The learned counsel submitted that mere production of

chemical analysis report, that the sample tested was contraband

substance is not a conclusive proof, unless and until the forwarding note

is produced. The prosecution has to prove that the very same sample

which was drawn from the liquid and was seized from the possession of

the accused, ultimately reached the hands of the chemical examiner in a

tamper proof condition. In Girish alias Manoj v. State of Kerala

[2019 KHC 655], it was has held that in the absence of forwarding note

marked in evidence, it cannot be found that the prosecution has proved

beyond reasonable doubt that the very same sample taken at the spot of

occurrence had reached the chemical examiner for analysis in a tamper

proof condition. In Ramachandran v. State of Kerala [2020 ICO

4306], this Court has held that the forwarding note is the link evidence

to show that it was the same sample which was drawn from the

contraband article and was seized from the accused which eventually

reached the hands of the chemical examiner by change of hands in a

tamper proof condition and hence, non production of it amounts to doubt

in prosecution case. Again, this Court recently in Sadasivan alias para

v. State of Kerala and another [2020 KHC 478] has held that the non

production of the forwarding note is fatal to the prosecution case and

that itself can be a ground for acquitting the accused. In this case, no

forwarding note has been produced or marked in evidence.

8. The forwarding note is expected to contain the

specimen impression of the seal which was used for sealing the sample

bottle. In the absence of the forwarding note admitted in evidence, it

cannot be said that the prosecution has proved beyond reasonable doubt

that the very same sample taken at the spot which reached the chemical

examiner for analysis was in tamper proof condition.

9. Ext.P1 does not bear any specimen sample seal.

Specimen has also not been separately produced. There is a specific

recital in Ext.P1 that PW2 Excise Inspector took sample of the liquid from

the can and sealed the sample bottle and the can containing the residue

and affixed label, bearing the signature and the signature of the

witnesses, on the can and the sample bottle. Ext.P5 is the list of the

'Thondi' articles prepared by PW2 for producing the material objects

before the court. The description of the can and the sample bottle given

in Ext.P5, the list of 'Thondi' articles, does not show that there was any

label on the MO1 can or the sample bottle. Therefore, it is difficult to

conclude that the very same sample which was allegedly drawn by PW2

at the spot of occurrence was produced before the court without any

tampering.

10. The aforesaid vital aspects which cut root of the

prosecution case were not taken into consideration by the court below

while appreciating the prosecution evidence. In these circumstances, I

hold that the conviction and sentence passed by court below cannot be

sustained.

In the result, the appeal is allowed. The conviction and

sentence passed by the court below are set aside. The appellant is

found not guilty of the aforesaid offence and is acquitted. His bail bond

is cancelled. The deposit made by the accused towards the fine amount

imposed shall be refunded.

SD/-

                                       DR. KAUSER EDAPPAGATH
RPS                                             JUDGE