Kerala High Court

Gopalan vs State Of Kerala on 22 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                      CRL.A.No.1091 OF 2006

AGAINST THE JUDGMENT IN SC 381/2005 DATED 02-06-2006 OF ADDITIONAL
           SESSIONS JUDGE,FAST TRACK COURT-I, PALAKKAD


APPELLANT/ACCUSED:

             GOPALAN, S/O. AZHAKELAN,
             THANNIPPUZHA VEEDU, KOTTAYANKAD, ELAVANCHERRY,,
             CHITTUR, PALAKKAD DISTRICT.

             BY ADV. SRI.C.C.THOMAS (SR.)

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,,
             NENMARA, PALAKKAD DISTRICT, REPRESENTED BY, THE
             PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

             R1 BY SMT.MAYA.M.N, PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1091 OF 2006

                                     2




                    P.V.KUNHIKRISHNAN, J.
               =====================
                    Crl.A. No.1091 of 2006
               =====================
           Dated this the 22nd day of February, 2020


                             JUDGMENT

Appellant is the accused in S. C. No. 381/05 on the file of

Additional Sessions Judge, Fast Track-I, Palakkad. The above

case is charge sheeted by the Excise Range Office, Nenmara

against the appellant alleging offence punishable under Section 8

of the Kerala Abkari Act.

2. The prosecution case is that, on 18.01.2001 at 8.00

p.m., the accused was found in possession of 5 liters of arrack in

a can in his possession near an electric post near his house on

the side of canal bund from Chulliar to Karimkulam in

Kottayamkad Desom in Elavanchery Village in Chittur Taluk.

3. To substantiate the case, the prosecution examined

PW1 and PW2. Exts. P1 to P6 are the exhibits marked on the side

of the prosecution. MO1 and MO2 are the material objects.

4. On going through the evidence and documents, the trial CRL.A.No.1091 OF 2006

court found that, the accused committed the offence under

Section 8 of the Abkari Act. The appellant/accused was

sentenced to undergo rigorous imprisonment for a period of one

year and also to pay a fine of Rs.1,00,000/-. In default of

payment of fine, the accused was directed to undergo rigorous

imprisonment for a period of six months. Aggrieved by the

conviction and sentence, this Criminal Appeal is filed.

5. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

6. The learned counsel for the appellant submitted that,

the conviction and sentence imposed on the appellant is

unsustainable, for the simple reason that, the property list is not

produced by the prosecution. Moreover, the learned counsel also

submitted that, there is a delay of 12 days in producing the

contraband articles before the Court. The prosecution has no

explanation for the same. The learned counsel also submitted

that, in Ext. P4 forwarding note, the person through whom the

sample is forwarded is kept blank, that is fatal to the prosecution.

7. The learned Public Prosecutor supported the judgment.

The learned Public Prosecutor submitted that, there is oral and CRL.A.No.1091 OF 2006

documentary evidence to prove the case against the appellant

and there is nothing to interfere with the conviction and sentence

imposed by the lower court.

8. The point for consideration in this appeal is whether the

appellant/accused committed the offence under Section 8 of the

Abkari Act.

9. Admittedly, the property list is not marked in this case.

The importance of property list in Abkari case is considered by

this Court on earlier occasion. The Court will gather the date on

which the properties reached the Court after seizure, through the

property list. If the property list is not marked in this case, that

is fatal to the prosecution. Once a contraband article is seized

from the possession of the accused, it should be produced before

the Court concerned forthwith. When the property is produced

before the Court, it will be produced along with a property list.

The trial Court and the appellate Court can verify the date on

which the property reached the Court only by going through the

endorsement in the property list. Simply because the witnesses

deposed that the property reached the Court on such and such

date, it cannot be believed safely. When there are documents to CRL.A.No.1091 OF 2006

prove that the property is reached the Court on a particular date

and the same is not marked by the prosecution, according to me

an adverse inference can be taken under Section 114(g) of the

Evidence Act, against the prosecution. Simply because the

witnesses deposed that, the property reached the Court on such

and such date, the same is not acceptable unless the property list

is produced and marked in cases like this. Admittedly, the

property list is not marked in this case. Therefore, this Court is

handicapped in ascertaining the date on which the property is

produced before the Court. It is now settled by a catena of

decision of this Court, that the property should be produced

before the Court forthwith and if the same is not produced, that

is fatal to the prosecution. To find out when exactly the property

reached the Court, the property list is relevant. If property list is

not produced and marked by the prosecution, that itself is a

ground for acquittal.

10. Moreover, PW1, the Excise Inspector, Nenmara deposed

that, the thondi articles were produced only on 30-01-2001,

whereas the seizure was on 18-01-2001. There is no proper

explanation for the delay in producing the thondi articles. This is CRL.A.No.1091 OF 2006

also fatal to the prosecution. [See Ravi V. State of Kerala

(2011 (3) KLT 353), Sukumaran V. State of Kerala (2019

(3) KLT 920) and Balachandran V. State of Kerala (2020

(3) KHC 697)].

11. Moreover, the forwarding note is silent with regard to

the name of the person through whom the sample is forwarded

to the analyst. In Ext.P4 forwarding note, the name of the

person who took the sample to the Chemical Examiner is not

mentioned. If that be so, the benefit of doubt will go to the

accused. In this case, the thondy clerk or the person who took

the sample to the Analyst are not examined. This Court in

Kumaran v. State of Kerala [2016 (4) KLT 718] held as

follows:

"There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder.

Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the CRL.A.No.1091 OF 2006

time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper- proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

12. In the light of the facts discussed above, I think the

appellant in this case is entitled to the benefit of doubt.

Therefore, this criminal appeal is allowed. The CRL.A.No.1091 OF 2006

conviction and sentence imposed on the appellant/accused as

per judgment dated 02.06.2006 in S. C. No. 381/05 on the file

of Additional Sessions Judge, Fast Track-I, Palakkad is set aside.

The appellant is set at liberty. The bail bond, if any, executed by

the appellant, is canceled. If any amount is deposited by the

appellant at the time of executing the bond in connection with

the interim order passed in this appeal, the same will be

disbursed to the appellant.

Sd/-