Alakandy Prabhakaran vs Sub Inspector Of Police
2021 Latest Caselaw 10253 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                      CRL.A.No.2387 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 1023/2005 DATED 12-11-2007 OF
         ADDITIONAL SESSIONS COURT (ADHOC) 1, THALASSERY



APPELLANT/ACCUSED:

             ALAKANDY PRABHAKARAN
             AGED 56 YEARS
             S/O. KUNHIRAMAN,
             THATTANTA PARAMBIL HOUSE,
             MANGATTIDAM, AMBILAD,
             KANNUR DISTRICT.

             BY ADV. SRI.CIBI THOMAS


RESPONDENTS/COMPLAINANT & STATE:

      1      SUB INSPECTOR OF POLICE
             KUTHUPARAMBA.

      2      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT. S.L.SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2387 OF 2007

                                   2




                               JUDGMENT

Dated this the 26th day of March 2021

The accused in S.C.No.1023/2005 on the file of

the Additional Sessions Court, Adhoc 1, Thalassery

has filed this appeal being aggrieved by the

judgment dated 12.11.2007, whereby he has been found

guilty of offence punishable under Section 58 of the

Abkari Act and sentenced to undergo simple

imprisonment for a period of 3 months and to pay a

fine of ₹1,00,000/- and in default of payment of

fine to undergo simple imprisonment for a further

period of 15 days.

2. The case of the prosecution is that on

27.01.2004 at about 5.15 p.m., the accused was found

in possession of 5 litres of arrack. The prosecution

examined PW1 to PW4 and produced and marked Exts.P1

to P8, before the court below. The material objects

were not placed before the court. The court below CRL.A.No.2387 OF 2007

on the basis of the evidence on record found the

accused guilty of the offence charged and imposed on

him the sentence referred above.

3. Heard Sri.Cibi Thomas, learned counsel on

behalf of the appellant and Smt.S.L.Sylaja, learned

Public Prosecutor on behalf of the respondents.

4. The counsel for the appellant submits that

there are several infirmities in the prosecution

case. Firstly, he pointed out that the offence was

detected by the Sub Inspector of Police,

Koothuparamba Police Station who has been examined

as PW4. Even though the offence took place within

the jurisdiction of the Koothuparamba Police

Station, the investigation was conducted by PW3, who

was the Sub Inspector of Police of the Kannavam

Police Station. Learned counsel submits that the

Investigating Officer did not have jurisdiction to

investigate into the offence which has happened

outside the jurisdiction and hence the entire

investigation is without authority. Another CRL.A.No.2387 OF 2007

contention raised by the counsel is that there is

absolutely no evidence on record regarding the

production of the contraband articles before the

court since no property list has been produced and

marked in this case. In the absence of a property

list, it is not possible to know the day on which

the contraband articles and the samples were

produced before the court and the person with whom

the safe custody of such articles were entrusted

with. I find considerable force in the contentions

raised by the counsel for the appellant. This Court

has in several judgments held that a Police Officer

can exercise the power of an Excise Officer but the

same can be exercised only within the area of his

jurisdiction. In the light of the above legal

position, PW3 would not have jurisdiction to

investigate into the offence committed in the

Koothuparamba range and the entire investigation is

hence vitiated. So also, in Ext.P4 forwarding note,

which has been produced and marked, it is seen that CRL.A.No.2387 OF 2007

the Officer who prepared it has not chosen to

indicate the date on which it was prepared. The

seal of the Court of the Magistrate on the

forwarding note would indicate that the same was

received in the court only on 26.02.2004, almost one

month after the incident is said to have been

committed. A covering letter has been attached to

the forwarding note, wherein the Investigating

Officer has stated that the sample has already been

produced before the court. However, in the said

letter also there is no indication as to when it was

produced before the court. The forwarding note does

not contain a counter signature of the Magistrate so

as to indicate the date on which the Magistrate has

counter signed the forwarding note and authorised

the sending of the sample, if any, produced for

chemical examination. The forwarding note also does

not contain the name of the Officer with whom the

sample has to be sent for chemical examination and

the impression of the specimen seal used for sealing CRL.A.No.2387 OF 2007

the sample. Thus the forwarding note does not

contain any of the details which are expected to be

in the forwarding note. This Court has held in Ravi

v. State of Kerala (2018 (5) KHC 352) and in several

other cases that the failure to place the impression

of the specimen seal used for sealing the sample is

fatal for the prosecution. So also in Kumaran v.

State of Kerala (2016 (4) KLT 718) this Court had

indicated the necessity of the counter signature of

the Magistrate and the date on which the counter

signature is put so as to find out the actual date

of despatch of the sample to the Chemical Examiner.

In Jayakumar v. State of Kerala (2018 KHC 3165) this

Court has held that the forwarding note should

contain the name of the Officer with whom the sample

is forwarded to the Chemical Examiner and in the

absence of such details, the Thondi Clerk should

have been examined. On a perusal of Ext.P8

certificate issued by the Chemical Examiner, it is

seen that the sample which was examined by the CRL.A.No.2387 OF 2007

Chemical Examiner was received from the Magistrate,

Koothuparamba along with a reference letter dated

28.02.2004 and that it was received only on

28.12.2004 ie; 10 months after the said reference

letter. There is absolutely nothing in evidence to

show whether the sample was handed over to any

particular officer for forwarding to the Chemical

Examiner either on 26.02.2004, which is the date

available on the forwarding note or on 28.02.2004,

which is the letter said to have been addressed by

the Judicial First Class Magistrate to the Chemical

Examiner and if so, where exactly the sample was

kept in safe custody till 28.12.2004, on which day

it had reached the Chemical Examiner. In the above

circumstances, it has to be held that the

prosecution has miserably failed to establish that

the very same sample which was taken at the scene of

occurrence, had reached the Chemical Examiner in

tamper proof condition.

5. In the circumstances, the appellant is CRL.A.No.2387 OF 2007

entitled to succeed in this appeal. In the result,

the judgment dated 12.11.2007 in S.C.No.1023/2005 on

the file of the Additional Sessions Court, (Adhoc)

I, Thalassery is set aside. The appellant is

acquitted and set at liberty. The bail bonds, if

any, executed by the appellant or on his behalf are

cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn