Kerala High Court
Mohanan @ President Mohanan vs State Of Kerala on 17 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
CRL.A NO. 1416 OF 2007
AGAINST THE JUDGMENT IN SC 285/2003 OF III ADDITIONAL DISTRICT &
SESSIONS COURT, KOLLAM,
APPELLANT/ACCUSED:
MOHANAN @ PRESIDENT MOHANAN,
S/O.KARUNAKARAN, AGED 47, NITHIN NIVAS,, KONNAKOOTHAM,
MUKKODUE CHERRY, MULAVANA, VILLAGE.
BY ADV P.SIVARAJ
RESPONDENT/COMPLAINANT
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY ADV. RENJITH GEORGE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1416 OF 2007 2
JUDGMENT
This appeal has been filed challenging the conviction and sentence imposed
on the appellant/accused in S.C. No.285/2003 on the file of the III rd Additional
Sessions Court, Kollam in a prosecution for the offence under Sections 55(a)
and (i) of the Abkari act.
2. The gist of the prosecution case is that, on 01.08.2001, at 07.10 pm, the
appellant/accused was found in possession of approximately one litre of illicit
arrack in a plastic bottle having a capacity of 1½ litres and another plastic
bottle full of arrack, also having capacity of 1½ litres together with a glass at a
place called Mulavana. It is alleged that the appellant/accused had been
engaged in selling illicit arrack.
3. Following investigation of the case, a final report was filed before the
Judicial First Class Magistrate Court-I, Kollam which is committed to the Court
of Sessions for trial. The matter was made over to the III rd Additional Sessions
Judge, Kollam where charges were framed against the appellant/accused under
Section 55(i) of the Abkari Act. The appellant/accused pleaded not guilty.
4. Prosecution examined PWs 1 to 5 and marked Exts.P1 to P6 and identified
MOs 1 to 3. Following the closure of prosecution evidence, appellant/accused
was questioned under Section 313 Cr.P.C where he denied all incriminating
evidence appearing against him. On the defence side, DW1, wife of the
appellant/accused was examined to suggest that the appellant/accused was
actually arrested from his house in the early morning on 02.08.2001 and the
impression that she had was that he was being arrested on account of a case for
assault registered against him and only when she reached the police station
with her relatives, she came to know that the appellant/accused had been
arrested in connection with an Abkari offence.
5. On an appreciation of the evidence tendered before the court, the trial
court came to the conclusion that the appellant/accused had committed the
offence punishable under Section 55(i) of the Abkari Act and therefore,
sentenced him to undergo rigorous imprisonment for one year and to pay a fine
of Rs.1,00,000/- (Rupees One lakh only), and in default of payment of fine, he
was sentenced to rigorous imprisonment for a further period of three months.
The period of custody from 01.08.2001 to 18.08.2001 was allowed as set off.
6. Sri. P Sivaraj, learned counsel appearing for the appellant/accused
would submit that the appeal is liable to be allowed on a short point. He
submits that the records in the case will show that the forwarding note
prepared for forwarding the samples for chemical analysis was not produced or
marked by the prosecution. He submits that in the light of the law laid down by
this Court in Gireesh V. State of Kerala [2019(4) KLT 79], the failure to
produce and mark the forwarding note is a fatal flaw to the prosecution case.
7. The learned Public Prosecutor contends that the absence of a forwarding
note by itself may not be fatal in the facts of this case. This Court, considering
the identical question as to whether the failure to produce and mark the
forwarding note is fatal to the prosecution case, in Gireesh (supra), 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."
To the same effect is the judgment of this Court in Unnikrishnan Nair v.State of
Kerala; 2020 (4) KLT 376.
8. Perusal of the records in this case would show that the prosecution had
not produced or marked the forwarding note together with the samples of the
seal used on the bottles in which the samples were taken, which alone would
have established that the samples were part of the contraband allegedly seized
from the appellant/accused. In the absence of such evidence, the crucial link
between the contraband seized from the appellant/accused and the chemical
analysis report has snapped. In that view of the matter, the appeal is liable to
be allowed without going into any other issue.
In the result, this appeal is allowed, the conviction and sentence in S.C.
No.285/2003 on the file of the III rd Additional Sessions Court, Kollam is set
aside and the appellant/accused is acquitted.
SD/-
GOPINATH P.
JUDGE
ajt
