Thankappan @ Unnikrishnan vs State Of Kerala
2021 Latest Caselaw 324 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                         CRL.A.No.2101 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 666/2006 DATED 11-10-2007 OF
           ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR


APPELLANT/S:

                THANKAPPAN @ UNNIKRISHNAN
                AGED 50 YEARS
                S/O. SANKU, THANDANKAVIL HOUSE,, PULAKODU VILLAGE AND
                DESOM, THALAPPILLY TALUK.

                BY ADVS.
                SRI.C.A.CHACKO
                SMT.C.M.CHARISMA
                SRI.N.A.SHAFEEK

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTING EXCISE INSPECTOR,, PAZHAYANNUR RANGE,
                REP. BY THE, PUBLIC PROSECUTOR, HIGH COURT OF
                KERALA,, ERNAKULAM.

                R1 BY PUBLIC PROSECUTOR
                MAYA M N GP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2101 OF 2007

                                2




                         JUDGMENT

Dated this the 6th day of January 2021

The appellant challenges the conviction and sentence

imposed on him in SC No.666/2006 on files of the Additional

Sessions Judge, Ad-hoc (Fast Track-I), Thrissur.

2. By the impugned judgment, accused has been found

guilty for the offence under Section 58 of the Abkari Act (For

short the Act) and has been sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs. One lakh

and in default, to undergo simple imprisonment of two months

for the offence as mentioned above.

3. The prosecution case was that the accused was

found possessing 10 liters of arrack on the Panchayat road

lying in front of the house of Ramanunni S/o. Sanku, situated CRL.A.No.2101 OF 2007

at Pulakkod desom in Pulakkod village at 8.30 a.m, on

03.02.2004, which was detected by PW5, who was the

Preventive Officer attached to the Excise Range Office, thereby

committing the offence punishable under Section 58 of Abkari

Act. After filing the final report, the case was committed to

the court of Session.

4. In order to prove the prosecution case, PWs 1 to 5

were examined and Exts.P1 to P7 were marked and the can

containing arrack was marked as MO1. After analysing the

prosecution case, the learned Sessions Judge found the accused

guilty and sentenced him as stated earlier.

5. The learned counsel for the appellant confines his

submissions to two points:

1) The forwarding note, which is a mandatory

requirement to connect the accused with the alleged

crime, was not produced or marked in the case, and

2) There was a delay in filing the final report.

CRL.A.No.2101 OF 2007

He submits that on both these grounds, the accused is

entitled to the benefit of doubt and beseeches this Court to

acquit the accused.

6. The learned public Prosecutor Smt.Maya M.N.,

submits that even though, the absence of forwarding note is

generally fatal, in the instance case, sufficient material were

available to connect the accused with the crime and hence, the

appeal ought to be dismissed. She also points out that the

delay in filing the final report is not very long, so as to warrant

an acquittal and also sufficient explanation were provided by

the Investigation Officer for the alleged delay.

7. I have considered the rival contentions in this case.

It is settled that absence of forwarding note is fatal to the

prosecution. It has been held by this Court in several

judgments, including the decision cited by the learned counsel

for the appellant in Sadasivan @ Para v. State of Kerala and CRL.A.No.2101 OF 2007

another (2020 KHC 478).

8. A perusal of the documents produced and marked

as Exts.P1 to P7 during trial shows that the prosecution had

not produced or marked the forwarding note before the trial

court. In the absence of the forwarding note, the alleged

sample sent for chemical examination, cannot be said to be the

one that was actually seized from the place of occurrence or

from the possession of the accused. In the absence of the

forwarding note, the accused is entitled to the benefit of doubt.

The prosecution evidence falls for short of proof beyond

reasonable doubt.

9. Even on the aspect of the delay in filing the final

report, the learned counsel for the appellant relies upon the

decision in Kumaran v.State of Kerala (2016 (4) KLT 718)

and points out that though the date of occurrence was on

03.02.2004, the final report was filed only on 07.06.2005, which

is after a delay of 1 year and 4 months. On going through the CRL.A.No.2101 OF 2007

evidence of prosecution witnesses, it is seen that absolutely no

explanation is forthcoming from the prosecution side as to the

delay of 1 year and 4 months in filing the final report after the

date of detection. In the decision cited by the learned counsel

for the appellant in Kumaran v.State of Kerala (2016 (4) KLT

718), almost an identical delay of 1 year and 4 months was

found by this Court to be fatal to the prosecution case,

especially in the absence of any explanation. The long and

unexplained delay in conducting the investigation and filing

the final report renders the accused entitled to the benefit of

doubt.

10. In view of the above, the prosecution case stands on

a shaky ground and the accused is accordingly, entitled to the

benefit of doubt. The finding of guilt upon the accused is

therefore, liable to be interfered with.

Accordingly, I set aside the conviction and sentence

imposed upon the accused in SC No.666/06 on the files of the CRL.A.No.2101 OF 2007

Additional Sessions Judge, Ad-hoc (Fast Track-I), Thrissur. The

accused is set at liberty and the bail bond stands cancelled.

Fine amount if any remitted shall be refunded to the accused.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS

JUDGE

JS