Kerala High Court

Vijayan 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. 1415 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 368/2002 OF SPECIAL COURT FOR ABKARI
                     ACT CASES, KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:

           VIJAYAN
           S/O. DIVAKARAN, PLANKUZHY VEEDU,
           OYOORKARA, VELINALLOOR VILLAGE, KOLLAM DISTRICT.

           BY ADV VINOY VARGHESE KALLUMOOTTILL



RESPONDENT/COMPLAINANT/STATE:

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

           BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

           SRI SANGEETH RAJ (PP)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.1415/2007                  -2-

                                    JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/accused in S.C. No.5/2002 on the file of the

Additional Sessions Judge (Abkari Cases), Kottarakkara in a prosecution

under Sections 55 (a), 8 (1) & 8 (2) of the Abkari Act.

2. The gist of the prosecution case is that on 11-05-1999 at about

12.oo noon the appellant/accused was found in possession for sale and

transporting arrack filled in 90 polythene packets each having

approximately 120 ml. It is alleged that by the aforesaid act the

appellant/accused committed offences under Sections 55(a), 8 (1) & 8 (2) of

the Abkari Act. Following investigation of the case a final report was filed

before the Judicial First Class Magistrate Court-II, Kottarakkara from where

it was committed to the Sessions Court, Kollam. It was originally made over

to the Assistant Sessions Court, Kottarakkara from where it was transferred

to the Additional Sessions Judge (Abkari Cases) Kottarakkara for the

purpose of trial and disposal. Charges were framed under Section 55 (a) read

with Section 8 (1) & 8 (2) of the Abkari Act. The appellant/accused pleaded

not guilty. The prosecution led evidence by examining PWs 1 to 3 and

marking Exts.P1 to P6 documents and identifying M.O 1 & M.O.2 series. On

closure of evidence the appellant/accused was questioned under Section

313 Cr.P.C. He denied all incriminating evidence appearing against him.

Finding no reason to acquit the appellant/accused under Section 232 Cr.

P.C., the appellant accused was called upon to enter his defence. The

appellant/accused examined himself as DW1. On an analysis of the evidence

the trial court came to the conclusion that the appellant/accused was guilty

as charged and convicted him accordingly. Following a hearing on the

sentence, the appellant/accused was sentenced to undergo simple

imprisonment for one year and pay a fine of Rs.1,00,000/- and in default of

payment of fine to undergo simple imprisonment for a further period of 3

more months.

3. 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

prosecution had failed to produce and mark the forwarding note through

which the samples of the contraband were forwarded for chemical analysis.

He submits that going by the settled position of law, failure to produce and

mark the forwarding note is the fatal to the prosecution case.

4. I have heard the learned Public Prosecutor also. I have also

perused the records. On going through the records, I am convinced 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 of the contraband was forwarded for chemical analysis. This court

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

Sadasivan @ Para v. State of Kerala and another; 2020 KHC 478

taken the view that failure to produce and marking of forwarding note is

fatal to the prosecution case. 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."

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

produced or marked in evidence. This is a fatal flaw to the prosecution case

as held in Gireesh (supra), Sadasivan (supra) and in Ramachandran

(supra). Since the prosecution failed to produce and mark the forwarding

note, 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 to be allowed.

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

imposed on the appellant/accused in S.C. No.368/2002 on the file of the

Additional Sessions Judge (Abkari Cases), Kottarakkara is set aside. The

appellant/accused will stand acquitted.

Sd/-