Kerala High Court
Sasikuamr @ Shaji 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.1995 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 170/2006 DATED 25-09-2006 OF THE
ADDITIONAL SESSIONS JUDGE (ADHOC-I), KOTTAYAM
CP 12/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHANGANACHERRY
APPELLANT/ACCUSED:
SASIKUAMR @ SHAJI
AGED 39 YEARS
S/O. KUNJUMON, MUNDUKALATHIL HOUSE,, KURICHY,
CHANGANACHERRY.
BY ADVS.
SRI.M.P.MADHAVANKUTTY
SRI.GOKUL DAS V.V.H.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.MAYA.M.N, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.1995/2006
2
P.V.KUNHIKRISHNAN, J.
Crl.A.No.1995/2006
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Dated this the 22nd day of February 2021
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JUDGMENT
The appellant is the accused in S.C.No.170/2006 on the files of
the Additional Sessions Judge (Adhoc)-I, Kottayam. The case was
charge sheeted against the appellant alleging offence under Section
55 (g) and 8(2) of the Abkari Act.
2. The prosecution case is that the accused was found in
possession of wash for the preparation of brewing arrack and brewed
arrack at an idavazhi situated in front of the house of one Kunjukunju,
S/o Cheeran of Kurichi Village in Changanacherry Taluk and hence
committed the offence. According to the prosecution, the accused
was found in possession of 35 litres of wash in a can along with 150 ml
arrack and an amount of Rs.180/- in his pocket. Further the
prosecution case is that, based on the confession statement of the
accused, 3 cans each containing 35 litres wash were recovered from a
nearby place and hence the accused committed the offence.
3. To substantiate the case, the prosecution examined PW1 to
Crl.A.No.1995/2006
PW6 and Exts.P1 to P6 are marked on the side of the prosecution.
MO1 series are the material objects. After going through the oral and
documentary evidence, the trial court found that the accused
committed offence under Section 55(g) of the Abkari Act. He is
sentenced to undergo rigorous imprisonment for two years and to pay
a fine of Rs.1,00,000/- and in default of the payment of fine, to
undergo rigorous imprisonment for six months. Aggrieved by the
above conviction and sentence this criminal appeal is filed.
4. Heard the counsel for the appellant and the Public
Prosecutor.
5. The counsel for the appellant submitted that the entire
prosecution case is vitiated for the simple reason that the forwarding
note is not marked in this case. The counsel submits that it is the duty
of the prosecution to prove all the links starting from the seizure of the
contraband till it reaches the hands of the analyst. The forwarding
note is one of the document to be marked by the prosecution. The
counsel submitted that, for that simple reason, the accused is entitled
to get the benefit of doubt. Learned counsel also submitted that the
property list is not produced and marked in this case. The counsel
submitted that, when exactly the contraband articles produced before
court is to be proved by the prosecution. For that purpose the
property list is relevant. If that is not there, the oral evidence of the
prosecution cannot be relied for that purpose.
Crl.A.No.1995/2006
6. The Public Prosecutor supported the impugned judgment
and submitted that there is oral and documentary evidence to
substantiate the case and hence the trial court is perfectly justified in
convicting the appellant.
7. Admittedly, the forwarding note is not marked in this case.
It is the fundamental duty of the prosecution to prove that the seized
articles are reached at the hands of the analyst. To prove this the
prosecution has to produce and mark the forwarding note in abkari
cases. If the same is not produced, it is fatal to the prosecution. 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 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))."
8. The other point is that the property list is not produced and
marked in this case. The property list is an important document to be
Crl.A.No.1995/2006
produced by the prosecution. The relevancy of property list in abkari
cases is considered by this Court in several judgments. 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 prove that the
property has reached the Court on a particular date and the same was
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
Crl.A.No.1995/2006
by the prosecution, that itself is a ground for acquittal. In the light of
the above discussion, I think that the appellant is entitled to get the
benefit of doubt.
This appeal is allowed. The conviction and sentence imposed on
the appellant as per judgment dated 25.9.2006 in S.C.No.170/2006 on
the files of the Additional Sessions Judge (Adhoc)-I, Kottayam is set
aside. The appellant is set at liberty. The bail bond, if any, executed is
cancelled.
Sd/-
P.V.KUNHIKRISHNAN
kp True copy JUDGE
P.A. To Judge
