Kerala High Court

Vasu, Vanjippuzhethu Colony vs State Of Kerala on 5 October, 2021

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                          CRL.A NO. 1946 OF 2006
  AGAINST THE JUDGMENT DATED 12-09-2006 IN SC 44/2002 OF ADDITIONAL
DISTRICT COURT & SESSIONS FAST TRACK (ADHOC), MAVELIKKARA, ALAPPUZHA


APPELLANT/ACCUSED:

           VASU,
           VANJIPPUZHETHU COLONY,
           VANVATHUKKARA MURI, THIRUVANDOOR VILLAGE.

           BY ADVS.
           SMT.R.BINDU SASTHAMANGALAM
           PRASANTH M.P



RESPONDENT/COMPLAINANT:

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

           BY ADV SRI. RENJIT GEORGE, PUBLIC PROSECUTOR.


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.1946/2006               -2-

                                 JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/accused in S.C No.44/2002 on the file of the

Additional District and Sessions Judge, Fast Track (adhoc), Mavelikkara in a

prosecution under Sections 8 (1) & 8 (2) of the Abkari Act.

2. The gist of the prosecution case is that on 20-02-1999 at about 12.30

p.m the Preventive Officer of Chenganoor Excise Circle office while on patrol

duty with other officials found the appellant/accused transporting about one

litre of illicit arrack in a steel vessel and thereby the appellant/accused

committed the offence under the aforesaid provisions of the Abkari Act.

Following investigation of the case a final report was filed before the Judicial

First Class Magistrate Court-II, Chenganoor from where it was committed to the

Sessions Court, Alappuzha as the offence was exclusively triable by a Court of

session. The matter was originally made over to the Assistant Sessions Court,

Mavelikkara and thereafter transferred to the Additional District and Sessions

Court (Adhoc), Fast Track, Mavelikkara for the purpose of trial and disposal.

Charges were framed by that court alleging the commission of offences under

Sections 8 (1) & 8 (2) of the Abkari Act. The appellant/accused pleaded not

guilty. The prosecution led evidence by examining PWs 1 to 6 and marking

Exts.P1 to P6 documents and identifying M.Os 1 & 2. Following the closure of

evidence, the appellant/accused was questioned under Section 313 Cr.P.C. The

appellant/accused denied all incriminating material appearing against him.

Though the appellant/accused was called upon to tender evidence, no defence

evidence was adduced.

3. On consideration of the evidence, the trial court came to the

conclusion that the prosecution has succeed in establishing the guilt of

appellant/accused and therefore convicted him under Sections 8 (1) & (2) of the

Abkari Act. After hearing the appellant/accused on the question of sentence, the

trial court imposed a sentence of rigorous imprisonment for 3 years and to pay a

fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous

imprisonment for a further period of one year. Set off as permissible in law was

granted.

4. The learned counsel for the appellant submits that this appeal is to

be allowed on a short point. He submits that this is a case where the forwarding

note through which the samples drawn from the contraband allegedly seized

from the appellant/accused has not been produced or marked in evidence. He

submits that going by the law laid down by this court i n Gireesh @ Manoj v.

State of Kerala; 2019 KHC 655 and Sadasivan @ Para v. State of

Kerala and another; 2020 KHC 478. In Gireesh (supra) this court

considered an identical issue and 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."

5. Having perused the records, I find that the learned counsel for the

appellant is right in contending that the prosecution had failed to produce and mark

the forwarding note through which the samples were forwarded for chemical analysis

in evidence in this case. Going by the law laid down by this court in Gireesh (supra),

Sadasivan (supra) and in Ramachandran (supra) this is fatal to the

prosecution case. The prosecution has failed to establish any link between the

contraband seized from the appellant/accused and the chemical analysis report.

In that view of the matter this appeal is liable to be allowed.

In the result this appeal is allowed. The conviction and sentence imposed

on the appellant/accused in S.C No.44/2002 on the file of the Additional District

and Sessions Judge, Fast Track (adhoc), Mavelikkara is set aside. The

appellant/accused will stand acquitted.