Kerala High Court
Prasad 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.975 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 716/2002 DATED 28-04-2006
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM
AGAINST THE ORDER/JUDGMENT IN CP 72/2000 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, KOLLAM
APPELLANT/S:
PRASAD, S/O. SADANANDAN,
PRASAD MANDIRAM, KUNNMTHARA COLONY,, THAZHAMAN
MURI, EAST KALLADA VILLAGE.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE S.I. OF POLICE,, EAST KALLADA
POLICE STATION (CRIME NO.188/99),, 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.975 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No. 975 of 2006
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Dated this the 22nd day of February, 2021
JUDGMENT
The appellant is the accused in S.C.No.716/2002 on the file of
the Addl.Sessions Judge (Adhoc) II- Kollam. The above case is charge
sheeted by the Sub-Inspector of Police, East Kallada Police Station
against the appellant alleging offence punishable under Sec.55(a), (b)
and (g) of Abkari Act.
2. The prosecution case is that on 15.11.1999, at about 7.30
a.m., the accused was found in possession of about 68 litres of wash
and utensils for manufacturing arrack in Prasad Mandiram wherein
the accused resides at Thazhom muri, East Kallad Village. It is alleged
that the accused was found engaged in manufacturing arrack in the
kitchen of the said house and thereby the accused committed the
offence.
3. To substantiate the case, the prosecution examined PW1 to
PW6, Exts.P1 to P5 were also marked. MO1 to MO9 are the material
objects. After going through the evidence and the documents, the trial
court found that the accused committed the offence under Sec. 55(b)
and (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/- (Rupees
One lakh only) under Sec.55(1)(b) of the Abkari Act. In default of
payment of fine, he is directed to undergo rigorous imprisonment for
one year. The accused is again sentenced to undergo rigorous
imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rupees
One lakh only) under Sec. 55 (g) of the Abkari Act. In default of
payment of fine, the accused is directed to undergo rigorous
imprisonment for one year. Aggrieved by the conviction and sentence,
the appellant filed this appeal.
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. According to the counsel,
it is the duty of the prosecution to prove the forwarding note.
According to the counsel, forwarding note is a material document and
if the same is not produced, the accused is entitled to 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
acquit the accused on technical grounds.
7. Admittedly, the forwarding note is not produced and
marked in this case. The relevancy of the forwarding note is
considered by this Court in several judgments. It is duty of the
prosecution to prove all links starting from seizure of the contraband
till it reaches in the hands of the analyst. Forwarding note is one of
the main link to be proved by the prosecution. Admittedly, the
forwarding note is not marked in this case.
8. 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.
9. 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))."
In the light of the above discussion, I think the appellant is
entitled the benefit of doubt. Therefore, this Criminal Appeal is
allowed. Conviction and sentence imposed on the appellant as per the
judgment dated 28.4.2006 in S.C.No.716/2002 on the file of the
Additional District And Sessions Judge (Adhoc) II, Kollam is set aside.
The appellant is set at liberty. The bail bond, if any, executed by the
appellant, is canceled.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
