Johnson vs State Of Kerala
2021 Latest Caselaw 6268 Ker

             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.1159 OF 2006

IN SC 655/2004 DATED 11-05-2006 OF ADDITIONAL DISTRICT & SESSIONS
                 (ADHOC)COURT-I, PATHANAMTHITTA

    IN CP 62/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
                         PATHANAMTHITTA


APPELLANT/ACCUSED:

             JOHNSON
             S/O.GEORGE, PLAVUNIKKUNNATHIL VEEDU,, AVOOLIKKUZHI
             KARA, KONNITHAZHAM VILLAGE,, KOZHENCHERRY TALUK.

             BY ADV. SRI.M.T.SURESH KUMAR

RESPONDENT/COMPLAINANT:

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

             R1 BY SMT.MAYA.M.N., PP

OTHER PRESENT:



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1159 OF 2006

                                       2




                   P.V.KUNHIKRISHNAN, J.
                 ===================
                    Crl.A. No. 1159 of 2006
                 ===================
           Dated this the 22nd day of February, 2021

                            JUDGMENT

Appellant is the accused in S.C.No. 655/2004 on the file of

the Additional District & Sessions (Adhoc) Court-I,

Pathanamthitta. The above case is charge sheeted against the

appellant by the Excise Inspector, Konni alleging offences

punishable under Sections 8(1) & (2) of the Abkari Act.

2. The prosecution case is that, on 14-08-2002 at about

2.30 a.m, the accused was found keeping possession of and

carrying 22 litres of arrack in a black cannas of 22 litre capacity

carryng the same upon his head and walking through the Konni-

Athumbumkulam public road near Konnappara junction by the

Konni Excise Range Inspector and party. Hence it is alleged that

the accused committed the offence.

3. To substantiate the case, prosecution examined PW1 to CRL.A.No.1159 OF 2006

PW6. Exts.P1 to P10 are the documents marked on the side of

the prosecution. One witness was examined on the side of the

defence as DW1. MO1 is the material object.

4. After going through the evidence and the documents,

the trial court found that the accused committed the offence

punishable under Section 8(1) & (2) of the Abkari Act. He is

sentenced to undergo rigorous imprisonment for a period of four

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

of fine, the accused is directed to undergo simple imprisonment

for a period of two years. 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 raised a single

point. The learned counsel submitted that, the forwarding note

is not produced and marked by the prosecution. For that simple

reason, the accused is entitled to the benefit of doubt, the

learned counsel submitted.

7. The learned Public Prosecutor submitted that, there is

oral and documentary evidence to prove the case and this Court CRL.A.No.1159 OF 2006

may not interfere with the conviction and sentence on technical

grounds.

8. The point for consideration is that, whether the accused

committed the offence punishable Under Section 8(1) & 8(2) of

the Abkari Act.

9. Admittedly, the forwarding note is not produced and

marked in this case. The relevancy of forwarding note is

considered by this Court in several decisions. It is the duty of the

prosecution to produce and prove the forwarding note in abkari

cases. Admittedly the same is not produced in this case.

10. 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.

11. 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) CRL.A.No.1159 OF 2006

KHC 814) and Prakasan and another v. State of Kerala

(2016 KHC 96). The relevant portion of the judgment in

Gireesh's case (supra) is 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))."

11. In the light of the above discussion, I think the

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

Therefore, this Criminal Appeal is allowed. The

conviction and sentence imposed on the appellant/accused as per

the judgment dated 11-05-2006 in S.C. No.655/2004 on the file

of the Additional District & Sessions (Adhoc) Court-I, CRL.A.No.1159 OF 2006

Pathanamthitta is set aside. The appellant is set at liberty. The

bail bond if any, executed by the appellant, is cancelled.

Sd/-

P.V.KUNHIKRISHNAN JUDGE sa