Salim Rawther vs State Of Kerala
2021 Latest Caselaw 550 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                      CRL.A.No.1167 OF 2007

AGAINST THE JUDGMENT DATED 31-05-2007 IN SC 76/2007 OF ADDITIONAL
               SESSIONS COURT (ADHOC)-I, KOTTAYAM


APPELLANTS ACCUSED 1 & 2 :

      1      SALIM RAWTHER, S/O. KUNJUMEERAN RAWTHER,
             AGED 46 YEARS, NADUVILADATHU HOUSE,
             PATHANADU, KANGAZHA.

      2      JINESH MENON, S/O.RADHAKRISHNA MENON,
             AGED 25, IRADATHUMADAM, MANNANICKAL,
             KANGAZHA.

             BY ADV. SRI.M.P.MADHAVANKUTTY

RESPONDENT/ COMPLAINANT :

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

             BY PUBLIC PROSECUTOR SMT.MAYA M.N.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1167 OF 2007

                                   2




                              JUDGMENT

Dated this the 7th day of January 2021

The appellant challenges the conviction and sentence

imposed in SC.No.76/2007 on the files of the Additional Sessions

Court (Ad hoc)-I, Kottayam.

2. The prosecution case was that on 30.06.2006, at 7.00

a.m., the accused were found in possession of 10 litres of arrack kept

for sale in the house belonging to the first accused. PW5, the Sub

Inspector of Police detected the offence and arrested the accused.

After investigation and filing of final report by PW3, the case was

committed to the Sessions Court.

3. In order to prove the prosecution case, the prosecution

examined PWs 1 to 7 and marked Exts.P1 to P6. Ext.X1 was marked

as a court exhibit while the defence examined DW1 and marked

Exts.D1 and D2. After analysing the evidence adduced, the learned

Sessions Judge came to the conclusion that the accused had

committed the offence under Section 55(a) & 55(i) of the Abkari Act

and imposed a sentence of rigorous imprisonment for one year and a

fine of Rs.1,00,000/- to each of the accused, in default of payment of CRL.A.No.1167 OF 2007

fine, to undergo rigorous imprisonment for six months.

4. Aggrieved by the conviction and sentence, the accused

had preferred this appeal under Section 374 of the Cr.P.C.

5. I have heard the learned counsel for the appellant

Adv.Sri.M.P.Madhavankutty as well as the learned Public Prosecutor

Adv.Smt.Maya M.N.

6. The learned counsel for the appellant submits that one

crucial factor alone is sufficient to acquit the accused which aspect,

according to him, was not noted by the learned Sessions Judge. The

learned counsel invited my attention to the failure of prosecution to

mark the forwarding note during trial, which, according to him is fatal

to the prosecution.

7. A perusal of the evidence adduced in the trial court

shows that though the forwarding note was not marked in evidence, it

was produced before court as seen from the files. However, since the

forwarding note has not been marked in evidence, it is as good as not

available for consideration for the court. The forwarding note stands

not proved in the case. It is settled that failure to prove the

forwarding note, before the court during evidence, is fatal to the

prosecution case rendering the entire prosecution story, doubtful.

Reliance can profitably be made to the decisions in Sadasivan @ CRL.A.No.1167 OF 2007

Para v. State of Kerala and Another [2020 KHC 478], in Gireesh

@ Manoj v. State of Kerala [2019 (4) KLT 79] and in Vijayan @

Pattalam Vijayan and Another v. State of Kerala [2018 (2) KHC

814]. In the aforesaid cases, it has been pointed out that in the

absence of the forwarding note, the link that connects the sample

taken from the contraband and send for analysis to the chemical

examiner gets snapped, thereby rendering the sample send for

analysis as one without sanctity. The absence of forwarding note

erodes into the credibility of the sample send for analysis. In such

circumstances, the accused is entitled to the benefit of doubt.

8. Even though the learned Public Prosecutor requests for

an opportunity to mark the forwarding note by remanding the case, I

am not inclined to do so considering that 14 years have elapsed since

the alleged date of occurrence. Though the forwarding note is seen in

the files, the same was not marked in evidence and hence this Court

cannot rely upon the same.

9. Since the learned counsel for the appellant relied upon

the sole point of absence of forwarding note, during his argument, I

refrain from considering the other points that arises in the instant

case. Accordingly, the prosecution has failed to prove the guilt of the

accused beyond reasonable doubt and the appellant is liable to be CRL.A.No.1167 OF 2007

acquitted.

In view of the aforesaid discussion, I set aside the

conviction and sentence imposed upon the accused in SC.No.76/2007

on the files of the Additional Sessions Court (Ad hoc)-I, Kottayam and

acquit the accused. The bail bond furnished, if any, shall stand

cancelled and the accused shall be set at liberty. The fine amount, if

remitted, shall also be refunded.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM