Appukuttan vs State Of Kerala
2021 Latest Caselaw 22788 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
    SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                          CRL.A NO. 818 OF 2007
AGAINST THE ORDER DATED 20-03-2007 IN SC 1951/2001 OF ADDITIONAL S.C.
    TRIAL OF ABKARI ACT CASES, NEYYATTINKARA, THIRUVANANTHAPURAM


APPELLANT/ACCUSED:

           APPUKUTTAN
           S/O. BALAKRISHNAN, LALITHA BHAVAN,
           MOOLAKARA, KOTTUKAL VILLAGE,, NEYYATTINKARA TALUK.

           BY ADVS.
           R.T.PRADEEP
           V.VIJULAL


RESPONDENT/COMPLAINANT:

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

           BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

           ADV. SRI. RENJITH GEORGE (SR.PP)

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.818/2007                   -2-

                                   JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on

the appellant/accused in S.C No.1951/2001 on the files of the Additional Sessions

Judge for trial of Abkari Act cases, Neyyattinkara. The appellant/accused was

apprehended by the Excise Inspector of Neyyattinkara Range on 28-07-1998 while on

patrol duty who found the appellant/accused in possession of a black jerrycan which

was stated to contain 2 litres of illicit arrack. Following the investigation of the case a

final report was laid before the court alleging the commission of an offence under

Section 58 of the Abkari Act. On the appellant/accused pleading not guilty, following

trial, the appellant/accused was convicted of the offence and sentenced to undergo

rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and

in default to undergo rigorous imprisonment for a period of 3 months.

2. The learned counsel for the appellant would submit that the sampling, in

this case, was admitted to be by the Thondi Section Clerk (properly clerk) attached to

the Judicial First Class Magistrate Court-II, Neyyattinkara. The issue as to whether the

Thodi Section Clerk attached to the Judicial First Class Magistrate Court is competent

to effect sampling has been considered in detail by this court in the judgment reported

in Baburaj v. State of Kerala; 2021 (6) KHC 92. It was held that the act of

taking samples through the Thondi Section Clerk of the Magistrate Court is not a

procedure contemplated by law. It has also been held that the Magistrate himself is not

competent to draw sample from the contraband produced before him by the Detecting

officer.

3. I am in respectful agreement with the view taken by a learned Single

Judge of this court in the decision referred to above. It is also to be noted that the

forwarding note has not been produced or marked in this case. The judgments of this

court in Gireesh @ Manoj v. State of Kerala; 2019 KHC 655 and Sadasivan

@ Para v. State of Kerala and another; 2020 KHC 478 hold that where the

forwarding note has not been produced or marked, the same is a fatal flaw to the

prosecution case. In Gireesh (supra) this court held as follows.-

"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by P.W.5 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 (1) KLT SN 89 (C.No.96) = 2016 (1) KLD 311) and Gopalan v. State of Kerala (2016 (3) KLT SN 24 (C.No.16) = 2016 (2) KLD 469).

15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.

16. The aforesaid view has been taken by this Court in a catena of decisions (See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (3) KLT SN 28 (C.No.30) = 2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) = 2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)). Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram (1980 KLT OnLine 1025 (SC) = AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC) = AIR 1994 SC 117).

17. The principles mentioned above get support also from the very recent decision of the Supreme Court, in Vijay Pandey v. State of Uttar Pradesh: (2019 (3) KLT OnLine 3028 (SC) = 2019 (10) SCALE 129) (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019), wherein it has been held as follows:

"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". (emphasis supplied)

18. The upshot of the discussion above is that the conviction entered and sentence passed against the appellant under S.55(a) of the Abkari Act cannot be sustained. The appellant is entitled to be acquitted."

In Sadasivan (supra) this question was again considered by this court and it was

held as follows.-

"11. Admittedly, the forwarding note is not marked in this case. 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.

12. 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) KLT OnLine 2057 = 2018 (2) KLT SN 48 (C.No.57) = 2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 (1) KLT SN 89 (C.No. 96) = 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 (1) KLT SN 89 (C.No. 96) = 2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40) and Gopalan v. State of Kerala (2016 (3) KLT SN 24 (C.No. 16) = 2016 KHC 541 : 2016 (2) KLD

469)."

13. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused."

This court in Ramachandran v. State of Kerala; 2021 (1) KLT 793 held as

follows:-

"8. In Ravi v. State of Kerala (2011 (3) KLT 353), the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition.

9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper - proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper - proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."

It is clear from the records in this case that the forwarding note was not produced or

marked in evidence.

This appeal is only to be allowed, in the light of the above facts. In the result this

appeal is allowed. The conviction and sentence imposed on the appellant/accused in

S.C No.1951/2001 on the file of the Additional Sessions Judge for trial of Abkari cases,

Neyyattinkara is set aside. The appellant/accused is acquitted.

Sd/-

GOPINATH P.

JUDGE AMG