Kerala High Court
Sahadeva Kurup 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.259 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 336/2005 DATED 16-01-2007
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT IN CP 144/2004 OF JUDICIAL
MAGISTRATE OF FIRST CLASS , ADOOR
APPELLANT/S:
SAHADEVA KURUP,
AGED 48 YEARS
S/O. BHASKARA KURUP, PADINJATTEDATHU VEEDU,
THENGAMAM, PALLICKAL VILLAGE, ADOOR TALUK,,
PATHANAMTHITTA.
BY ADVS.
SRI.S.MUHAMMED HANEEFF
SRI.M.H.ASIF ALI
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY INSPECTOR OF EXCISE, ADOOR EXCISE
RANGE,, (O.R.NO.110/2003), REP. BY, PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
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.259 OF 2007 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No. 259 of 2007
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Dated this the 22nd day of February, 2021
JUDGMENT
The appellant is the accused in sessions case No.336/2005 on
the file of the Addl.District and Sessions Judge (Adhoc) Fast Track
Court-II, Pathanamthitta. The above case is charge sheeted by the
Inspector of Excise, Adoor Excise Range, against the accused alleging
offence punishable under Sec. 8(1) and (2) of the Abkari Act.
2. The prosecution case is that on 27.8.2003 at 12.30 noon,
the accused was found carrying 1 ½ litres of arrack in a black plastic
can of 2 ½ litres capacity on the southern side of Thengamam
market-Chakkuvally PWD road at Thangamam in Pallickal Village.
3. To substantiate the case, the prosecution examined PW1 to
PW4. Exts.P1 to P10 were also marked on the side of the prosecution.
On going through the evidence and the documents, the trial court
found that the accused committed offence under Sec.8(2) of the
Abkari Act. The accused is sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,00,000/- (Rupees
One lakh only). In default of payment of fine, the accused is directed
to undergo simple imprisonment for six months. Aggrieved by the
conviction and sentence, this Criminal Appeal is filed.
4. Heard counsel for the appellant and the Public Prosecutor.
5. The counsel for the appellant submitted that the
forwarding note is not marked in this case. The counsel also
submitted that there is delay in producing the sample before the
analyst as evident by Ext.P9. The counsel submitted that the accused
is entitled the benefit of doubt on these grounds.
6. The Public Prosecutor submitted that there is oral and
documentary evidence in this case and there is nothing to interfere
with the conviction and sentence imposed on the appellant.
7. The point for consideration in this case is whether the
appellant/accused committed the offence under Sec.8(1) and (2) of
the Abkari Act.
8. Admittedly, the forwarding note is not marked in this case.
That is a fatal document in abkari cases to prove the link starting
from seizure of the contraband till it reaches in the hands of the
analyst. Since the forwarding note is not produced and marked in this
case, the appellant is entitled the benefit of doubt on that reason
itself.
9. 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.
10. 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))."
11. Moreover, a perusal of Ext.P9, the chemical analysis
certificate will show that the sample was forwarded from the Court on
16.9.2003. but the sample was received by the analyst only on
3.11.2003. There is no explanation for this delay in producing the
sample before the analyst. That is also fatal to the prosecution.
12. In the light of the above discussion, the appellant is
entitled the benefit of doubt.
Therefore, this Criminal Appeal is allowed. The conviction and
sentence imposed on the appellant as per the judgment dated
16.1.2007 in Sessions Case No.336/2005 on the file of the Addl.
Sessions and Sessions Judge (Adhoc), Fast Track Court-II,
Pathanamthitta is set aside. The appellant is set at liberty. Bail bond,
if any, executed by the appellant, is cancelled.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
