Chakrapani @ Unnikrishnan vs State Of Kerala
2021 Latest Caselaw 7366 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                          CRL.A.No.866 OF 2007

 AGAINST THE ORDER/JUDGMENT IN SC.NO.356/2004 DATED 27-04-2007 IN
   THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC)- I, KALPETTA


APPELLANT/ACCUSED:

             CHAKRAPANI @ UNNIKRISHNAN
             S/O RAMAN, MUTTIL,
             WAYANAND DISTRICT.

             BY ADV. SRI.SUNNY MATHEW

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             THROUGH THE EXCISE INSPECTOR,
             KALPETTA EXCISE RANGE,
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT, OF KERALA, ERNAKULAM.

             R1 BY SMT. SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.866 OF 2007

                                    2



                            JUDGMENT

Dated this the 3rd day of March 2021

The accused in SC.No.356/2004 has filed this appeal being

aggrieved by the judgment dated 27.04.2007 of the Additional

Sessions Judge (Adhoc) -I, Kalpetta finding the appellant guilty of

offence under Section 55(a) of the Abkari Act and sentenced him to

undergo rigorous imprisonment for two years and to pay a fine of Rs.1

Lakh and in default of payment of fine to undergo rigorous

imprisonment for six months.

2. The case of the prosecution is that on 10.08.2003 at about

11.00 p.m, PW1 the Excise Inspector and party who were on patrol

duty on the road proceeding to Public Health Centre, Vazhavatta saw

the accused coming back with a black plastic can in his hand. The

Excise officials stopped the accused and on examination of the plastic

can, it was found that it contains 5 litres of illicit arrack. The

investigation was completed and the charge was laid before the Chief

Judicial Magistrate, Kalpetta, who committed the case to Court of

Sessions, Kalpetta on 29.10.2004. The case was thereafter made over

for trial to the Additional Sessions Judge (Adhoc) - I, Kalpetta.

3. On the side of the prosecution, PW1 to PW5 were examined

and ExtsP1 to P7 were marked. MO1 was identified by the witnesses. CRL.A.No.866 OF 2007

After consideration of the evidence on record, the court below

returned the verdict that the accused is guilty of the offence charged

and imposed the sentence aforesaid. It is aggrieved by the above

judgment that this appeal is filed.

4. Heard Shri.Sunny Mathew on behalf of the appellant and

Smt.Shylaja, learned Public Prosecutor on behalf of the State.

5. The counsel for the appellant put forth two contentions which

are sufficient for allowing the appeal. The first contention is that there

is considerable delay in completing the investigation and the counsel

points out that the incident occurred on 10.08.2003, but PW5 took up

the investigation only on 01.03.2004. Apart from this, the counsel also

points out that Ext.P5 which is the forwarding note whereby the

collected sample was sent for chemical examination does not bear a

date along with the signature of the Magistrate which is crucial for

proving the prosecution case. The counsel relies on the decision of this

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

The counsel particularly refers paragraphs 6 and 7 of the judgment

which are extracted below;

"6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. state of Kerala [2015 (1) KHC 822] to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on CRL.A.No.866 OF 2007

13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.

7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

6. In the case on hand, the facts are almost similar as in

Kumaran (supra). In this case also there is a delay of seven months

in taking up the investigation for which there is absolutely no

explanation from the side of the prosecution. This has been stated as

a reason which entitles the accused for the benefit of doubt

particularly when the quantity of the contraband involved is only 5 CRL.A.No.866 OF 2007

litres. So also in the judgment extracted above, this Court has

specifically held that the Magistrate ought to have written the date on

which the initial was made and since the same was not done, there is

scope for a doubt regarding the exact date on which the articles had

been sent to the chemical examiner.

7. I have gone through the records and I find from Ext.P5

which is the forwarding note that the Magistrate has not written the

date along with his signature. I however notice that the seal of the

Court is put on the top left side of the document which shows the date

as 11.08.2003. However, that cannot be taken as the date on which

the Magistrate had signed the forwarding note. There is always a

possibility that the seal was affixed when the document was received

in Court because there is no other indication for having received the

document in Court. Moreover, the counsel for the appellant relies on

the judgment of this Court in Crl.Appeal No.2213/2006 dated

22.02.2021 wherein, this Court had considered a situation where a

date had been written along with the initial but had expressed a doubt

that even such writing of the date may not be sufficient to prove the

fact that the forwarding note was dispatched on that date with the

Chemical Examiner.

8. I find considerable force in the contentions raised by the CRL.A.No.866 OF 2007

counsel for the appellant. The facts available in this case are similar to

the one which was considered by this Court in Kumaran (supra) and

as regards the writing of the date is concerned, not only is this a case

where the Magistrate has not noted the date along with his initial but

also a case where there is no indication as to when the materials were

dispatched to the Chemical Examiner.

In the circumstances, I find that the accused is entitled to the

benefit of doubt and the prosecution has to fail. The judgment of the

Additional Sessions Judge (Adhoc) -I, Kalpetta in SC.No.356/2004 is

set aside and the appellant is acquitted and set at liberty. Bail bond if

any executed by the appellant or on his behalf is cancelled. The appeal

stands allowed.

Sd/-

T.R.RAVI

JUDGE

Sn