Kerala High Court
Saji 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.1574 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 1489/2004 DATED 20-07-2006
OF ADDITIONAL SESSIONS COURT(ADHOC)III, KOLLAM
AGAINST THE ORDER/JUDGMENT IN CP 10/2003 OF JUDICIAL
MAGISTRATE OF FIRST CLASS , PARAVOOR
APPELLANT/S:
1 SAJI, S/O. GEORGE,
ALUMMOOTTIL VEEDU, ADINADU CHERRY,,
KALLUVATHUKKAL, KOLLAM.
2 THULASEEDHARAN SO.PODIYAN
BINU MANDIRAM, PARANGOTTU CHERRY,, POOYAPPALLY.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/S:
STATE OF KERALA
REP. BY THE EXCISE INSPECTOR, CHATHANNOOR
EXCISE, RANGE (CRIME NO.9/1998), THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
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.1574 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No. 1574 of 2006
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Dated this the 22nd day of February, 2021
JUDGMENT
Appellants are the accused in Sessions case No.1489/2004 on
the file of the Addl.Sessions Judge (Adhoc) III- Kollam. The above case
is charge sheeted against the appellants alleging offences punishable
under Secs.8(1) and (2) of the Abkari Act.
2. The prosecution case is that on 28.3.1998, at about 5.45
p.m., the excise party led by CW4, the Excise Inspector attached to
Chathannur Excise Range found both the accused carrying 5 litres of
illicit arrack each in two cans of 5 litre capacity along the
Kalluvathukkal-Chenkulam road lying in front of Aduthala St.George
Chapel situated in Kalluvathukkal village.
3. To substantiate the case, the prosecution examined PW1 to
PW5, Exts.P1 to P6 were also marked on the side of the prosecution.
Two witnesses were examined on the side of the defence also as DW1
and DW2. MO1 is the material object. After going through the
evidence and the documents, the trial court found that the accused
committed the offence under Sec. 8(2) of the Abkari Act. They were
sentenced to undergo simple imprisonment for a period of two years
each and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) each.
In default of payment of fine, the accused are directed to undergo
simple imprisonment for a further period of three months. Aggrieved
by the conviction and sentence, this criminal appeal is filed.
4. Heard counsel for the appellants and the Public Prosecutor.
5. The counsel for the appellants raised only a single point.
According to the counsel, the forwarding note is not marked in this
case. The counsel submitted that, it is fatal to the prosecution in the
light of several judgments of this Court. The counsel submitted that
for that simple reason, the accused is entitled the benefit of doubt.
6. The Public Prosecutor submitted that there is oral and
documentary evidence to prove the case and this Court may not
interfere with the conviction and sentence on technical grounds.
7. The point for consideration in this case is whether the
accused committed the offence under Sec.8(1) and (2) of the Abkari
Act.
8. Admittedly, the forwarding note is not produced and marked in
this case. The importance of the forwarding note is considered by this Court
in several decisions. It is the fundamental duty of the prosecution to prove
that the contraband seized from the possession of the accused reaches in
the hands of the analyst. All the links starting from seizure till it reaches in
the hands of the analyst is to be proved by the prosecution. The forwarding
note is one of the link to be proved by the prosecution. Admittedly, the
forwarding note is not marked in this case.
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))."
10. In the light of the above discussion, the accused is
entitled the benefit of doubt.
Therefore, this criminal appeal is allowed. Conviction and
sentence imposed on the appellants as per the judgment dated
20.7.2006 in S.C.No.1489/2004 on the file of the Additional
Sessions Judge (Adhoc) III, Kollam is set aside. The appellants
are set at liberty. The bail bonds, if any, executed by the
appellants, are canceled.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
