Kerala High Court
V.S. Sasikumar @ Adimaly Sasi vs Govt. 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.116 OF 2006
AGAINST THE JUDGMENT IN SC 717/2000 DATED 15-12-2005 OF THE
ADDITIONAL SESSIONS JUDGE (ABKARI), KOTTARAKKARA
APPELLANT/ACCUSED:
V.S. SASIKUMAR @ ADIMALY SASI
CHOONDALI PUTHEN VEEDU, EAST MARANADU MURI,,
PAVITHRESWARAM VILLAGE, OTHERWISE RESIDING, AT
SARITHA MANDIRAM, THEVALAPPURAM DESOM,, PUTHOOR
VILLAGE, KOTTARAKKARA TALUK.
BY ADVS.
SRI.K.K.CHANDRAN PILLAI
SRI.REJOY RAJ
RESPONDENT/RESPONDENT:
GOVT. OF KERALA
REP.BY THE EXCISE INSPECTOR, KOTTARAKKARA,/ PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY SMT.S.L.SYLAJA, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.116/2006
2
P.V.KUNHIKRISHNAN, J.
Crl.A.No.116/2006
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Dated this the 22nd day of February 2021
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JUDGMENT
This appeal is filed against the judgment dated 15.12.2005 in
S.C.No.717/2000 on the files of Additional Sessions Judge (Abkari),
Kottarakkara. The accused was charge sheeted alleging offence
punishable under Section 55(g) of the Abkari Act.
2. The prosecution case is that on 29.8.1997, at 1 pm, the
accused was found in possession of 315 litres of wash in 9 jerry cans of
35 litres capacity and 35 litres of wash in an aluminium pot. Both
items were covered by a gunny bag kept in the kitchen room of
Choondali Puthen Veedu bearing No.XII/244 of Pavithreswaram
Panchayat in which the accused was alleged to be resided.
3. To substantiate the case of the prosecution, PW1 to PW6
were examined as witnesses and Exts.P1 to P5 were marked. MO1 to
MO3 were the material objects identified. After going through the
records, and evidence the lower court found that the accused
committed the offence under Section 55(g) of the Abkari Act and he
Crl.A.No.116/2006
was sentenced to undergo rigorous imprisonment for two years and to
pay a fine of Rs.1,00,000/- and in default, to undergo rigorous
imprisonment for three more months. Aggrieved by the conviction and
sentence this criminal appeal is filed.
4. Heard the learned counsel for the appellant and the Public
Prosecutor.
5. The learned counsel for the appellant submitted that there
is absolutely no evidence to connect the appellant/accused in this
case. The counsel submitted that the accused was not arrested from
the spot. According to the prosecution case, he ran away from the
spot. After that, the accused was identified by the police from the
spot. The counsel submitted that the identity of the accused was not
proved by the prosecution. Moreover, the counsel also submitted that
the contraband articles were seized from the house from where the
accused ran away. The ownership of that house is not proved by the
prosecution. According to the prosecution, the house belongs to one
Paulose and the accused was residing in the house as a lessee. The
above Paulose was not examined. In addition to all, the counsel
submitted that the forwarding note is not marked and that itself is
enough to acquit the accused.
6. The Public Prosecutor submitted that there is oral and
Crl.A.No.116/2006
documentary evidence to prove the case and there is nothing to
interfere with the conviction and sentence imposed on the accused.
7. The point for consideration is whether the accused
committed the offence under Section 55(g) of the Abkari Act.
8. Admittedly, the forwarding note is not marked in this case.
The importance of forwarding note is considered by this Court in
several judgments. In abkari cases, forwarding note is important
because the specimen seal used by the detecting officer will find a
place in it. It is the fundamental duty of the prosecution to prove all
the links starting from seizure of the contraband till it reaches in the
hands of the analyst. Forwarding note is one of the links to prove the
prosecution case in abkari cases. 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
Crl.A.No.116/2006
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))."
9. Moreover, it is an admitted fact that the accused was not
arrested from the spot. According to the prosecution, the accused ran
away from the spot. Simply because a person ran away from the spot
after seeing the Excise Officials, it cannot be presumed that he
committed the offence. This Court in Santhosh v. State of Kerala
(2007 (1) KHC 1032) observed as follows:
"10. In short, possession simpliciter alone is proved. Of
course, there is a further indication that the petitioner took to
his heels when he was intercepted by the police. Many
persons in this country may resort to that course when
confronted by the police even while performing legitimate and
legal pursuits. That circumstance, by itself, cannot lead to a
ready inference even at the stage of taking congnizance that
the articles in question were possessed for the purpose of illicit
manufacture of liquor. "
10. Therefore, unless there is any other evidence to connect the
accused, there cannot be a conviction against the appellant/accused
merely because the accused ran away. In this case, the prosecution
case is that the accused ran away from a residential house. According
to the prosecution, the house belongs to one Paulose. But he was not
examined. The further case of the prosecution is that the above
Paulose gave this house to the accused on lease. There is no evidence
Crl.A.No.116/2006
regarding the same. Therefore, simply because the accused has ran
away from a house, there cannot be a presumption that the
contraband articles seized from that house were in the conscious
possession of the appellant/accused. In the light of the above
discussion, I think that the appellant/accused is entitled to the benefit
of doubt.
Therefore, Crl.A.No.116/2006 is allowed. Judgment dated
15.12.2005 in S.C.No.717/2000 on the file of the Additional Sessions
Judge (Abkari), Kottarakkara is set aside. The appellant/accused is set
at liberty. The bail bond, if any, executed is cancelled.
Sd/-
P.V.KUNHIKRISHNAN
kp True copy JUDGE
P.A. To Judge
