Kerala High Court
Jayan vs State Of Kerala on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
CRL.A NO. 2443 OF 2008
AGAINST THE JUDGMENT DATED 24.9.2008 IN SC 461/2004 OF
ADDITIONAL SESSIONS COURT, FAST TRACK - III, TRIVANDRUM,
THIRUVANANTHAPURAM
CP 130/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-I,NEYYATINKARA
APPELLANT/ACCUSED:
JAYAN
S/O.BHASKARA PANICKER, DEVI NILAYAM, KAMUKINCODE,
VENPAKAL DESOM, ATHIYANOOR VILLAGE, NEYYATTINKARA,,
THIRUVANANTHAPURAM.
BY ADV SRI.SUMAN CHAKRAVARTHY,
SRI.MELWIN BYJU
RESPONDENT/COMPLAINANT AND STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.SANAL P RAJ
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.2443/2008
-:2:-
JUDGMENT
Dated this the 20th day of October, 2021
This appeal has been filed by the accused in
S.C.No.461/2004 on the files of the Additional Sessions Judge
Fast Track-III, Thiruvananthapuram against the judgment dated
24.9.2008, convicting and sentencing him under Section 8(2) of
the Abkari Act (for short 'the Act').
2. The appellant/accused faced trial under Section 8(2)
of the Act. The prosecution case in short is that on 19.3.1999 at
11.30 am, the accused was found in possession of 5 litre jerry
can containing full of illicit arrack on the western bund of
Mekkarikulam at Kadavattaram desom in Neyyattinkara Village in
contravention of Abkari Act and Rules.
3. On receipt of summons, the accused appeared at court
below. After hearing both sides, charge was framed under
Section 8(2) of the Act. The charge was read over and explained
to the accused who pleaded not guilty. The prosecution
examined PW1 to PW4 and marked Exts.P1 to P6. MO1 was
Crl.Appeal No.2443/2008
identified. The accused was questioned under Section 313 of
Cr.P.C. He denied all the incriminating circumstances brought
against him during evidence. He submitted that he is innocent.
No defence evidence was adduced.
4. Considering the evidence on record, the court below
found the accused guilty under Section 8(2) of the Act. He was
sentenced to undergo simple imprisonment for one year and to
pay a fine of Rs.1,00,000/-(Rupees one lakh only), in default to
suffer simple imprisonment for a period of three months.
Aggrieved by the said conviction and sentence, the accused
preferred this appeal.
5. I have heard Sri. Melwin Byju, learned counsel for the
appellant and Sri. Sanal P. Raj, learned Public Prosecutor.
6. The learned counsel for the appellant impeached the
finding of the court below on appreciation of evidence and
resultant finding as to the guilt. The learned counsel submitted
that the prosecution failed to produce forwarding note, which is
fatal to its case. The counsel further submitted that there is
considerable delay in conducting and completing the
Crl.Appeal No.2443/2008
investigation. The counsel also submitted that no independent
witnesses were examined to prove seizure and sample. The
learned Public Prosecutor on the other hand supported the
findings and verdict handed down by the court below and argued
that necessary ingredients of Section 8(2) of the Act had been
established and the prosecution had succeeded in proving the
case beyond reasonable doubt.
7. PW1 is the detecting officer. He gave evidence that
while he was conducting patrol duty, the accused was found to
be coming holding 5 litre jerry can containing full of arrack
through the western bund of Mekkarikulam at Kadavattaram
desom in Neyyattinkara Village and he was arrested, contraband
article was seized and Ext.P1 mahazar was prepared. Thereafter,
reached the range office and registered Ext.P4 crime and
occurrence report. PW3 thereafter conducted investigation and
filed charge sheet. PW2 is the attestor to Ext.P1 mahazar. PW4
is the Thondi Section clerk at JFCM-I, Neyyattinkara who received
the contraband article, drew sample and sent the same for
chemical analysis. Ext.P6 is the chemical analysis report. It
Crl.Appeal No.2443/2008
shows that the sample contained ethyl alcohol, 41.60% by
volume.
8. The main point canvassed by the learned counsel for
the appellant is non production of forwarding note. The learned
counsel argued that the mere production of lab report that the
sample tested was contraband substance is not sufficient unless
and until forwarding note is produced. In support of his
argument, the learned counsel has cited the decision of this
Court in Unnikrishnan Nair v. State of Kerala (2020 (4) KLT
376). It was held that the forwarding note is expected to contain
the specimen impression of seal used to seal the bottles
containing samples and in the absence of the forwarding note
admitted in evidence, it cannot be found that the prosecution has
proved beyond reasonable doubt that the very same sample
taken at the spot of occurrence had reached the chemical
examiner for analysis in a tamper proof condition. This Court in
Gireesh @ Manoj v. State of Kerala [2019 KHC 655] has also
held that in the absence of forwarding note marked in evidence,
it cannot be found that the prosecution has proved beyond
Crl.Appeal No.2443/2008
reasonable doubt that the very same sample taken at the spot of
occurrence had reached the chemical examiner for analysis in a
tamper proof condition. The forwarding note is the link evidence
to show that it was the same sample which was drawn from the
contraband seized from the accused, which eventually reached
the hands of the chemical examiner by change of hands in a
tamper proof condition. In this case, no forwarding note had
been produced. That apart, there is no spot sample. The
specimen sample has not been separately produced at the court.
Ext.P5 is the property list. The description of property given in
Ext.P5 does not show that the can which contained the illicit
arrack was in a sealed condition or that there was any seal on it.
In Moothedath Sivadasan v. State of Kerala [2021 (2) KLJ
80], this Court recently has held that in the absence of any link
evidence to show that the very same sample which was drawn
from the contraband article allegedly seized from the possession
of the accused reached the hands of the chemical examiner, it is
unsafe to convict the accused. Such evidence is lacking in this
case.
Crl.Appeal No.2443/2008
9. There is yet another point in favour of the accused.
There is a considerable delay of 4½ years in completing the
investigation and filing a final report. The incident was on
19.3.1999. Even the witnesses were questioned on 4.6.2003
after 4½ years. The delay has not been explained by the
prosecution.
10. The above said vital aspects were not taken into
consideration by the court below while appreciating the
prosecution evidence. For these reasons, I hold that the
conviction and sentence passed by the court below cannot be
sustained.
In the result, this Crl.Appeal is allowed. The conviction and
sentence passed by the court below vide the impugned judgment
are set aside. The appellant is found not guilty of the offence
charged against him and is acquitted. His bail bond is cancelled.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp True copy
P.A. To Judge
