High Court allowed criminal appeal against conviction for punishable offence. Court held that absence of forwarding note and sample seal, failure to examine registrant, led to acquittal.
Accused acquitted; conviction and sentence below set aside; bail bond cancelled.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2015/27TH KARTHIKA, 1937
CRL.A.No.439 of 2007
AGAINST THE JUDGMENT IN SC 409/2005 of ADDL. SESSIONS COURT FAST TRACK - III, PALAKKAD DATED 14-02-2007
APPELLANT/ACCUSED:
E.KRISHNAN, AGED 40 YEARS,
S/O.GOVINDAN, ERIKKANCHERI VEEDU, KARIMPUZHA VILLAGE, KARIMPUZHA DESOM, OTTAPALAM TALUK.
BY SRI.C.C.THOMAS (SENIOR ADVOCATE)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY
EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHERPULASSERY PALAKKAD DISTRICT BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. S. HYMA, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.439 OF 2007
Dated this the 18th day of November, 2015.
J U D G M E N T
The accused was prosecuted for the offence punishable under Section 55(a) of Abkari Act. He was found guilty and was therefore convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1 lakh with default clause of simple imprisonment for six months. Set off as per law was allowed.
Crl. Appeal No.439/2007
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was opened and the liquid was examined by taste and smell and it turned out to be spirit. The can had a capacity of 10 liters and
the volume of spirit in the can was 4 liters. On unwrapping the papers, it was found 6 bottles having a capacity of 375 ml each of Old Port XXX Rum. He opened one of the bottles and by taste and smell, he convinced that it was Indian Made Foreign Liquor. After preparing the arrest memo, accused was arrested. From the can, 180ml of liquid in a bottle having a capacity of 375 ml was taken as sample and so also the liquid in the bottle which was opened. Both were sealed and labeled. On the label, signatures of accused and PW1 were affixed. He prepared Ext.P2 seizure mahazar. The balance contraband articles were also sealed and labeled. He produced the accused, contraband articles and documents in his office. The officer then in charge of the station received the accused, records and the contraband articles and registered crime as per Ext.P6 occurrence report. It would appear that he prepared the property list and forwarding note and had the accused produced before court.
Crl. Appeal No.439/2007
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mahazar, Ext.P3 and obtained chemical analysis report, Ext.P5. He recorded the statement of witnesses, completed the investigation and laid charge before court.
4
Crl. Appeal No.439/2007
the offence had been made out and accordingly, convicted and sentenced the accused as already mentioned.
Crl. Appeal No.439/2007
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prosecution should fail.
Crl. Appeal No.439/2007
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crime, who had prepared the property list and who had drawn up the forwarding note has not been examined. No reasons are given for his non examination. Even though, normally, drawing of seizure mahazar may not be much significant, the contention based on the absence of property list and forwarding note assumes considerable significance. Even assuming that PW4 whose name is Varmadevan was the person who had actually written the seizure mahazar, going by the evidence of PW1, that does not cure the other defects in the case. For reasons best known to the prosecution, they did not feel it necessary to produce the property list nor did they feel it proper to examine the person who had registered the crime and drawn up those documents. Probably, it is because that from the endorsement seen on the documents, arrest memo and mahazar are seen produced before court only on 04.05.2001.
Crl. Appeal No.439/2007
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the said decision, it was held as follows:
“Ext.P5 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P5. Whether the sample seal was affixed on the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evidence from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note. Is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution.”
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For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.
Sd/-
P.BHAVADASAN JUDGE
smp
1 issue framed by the court
Whether conviction and sentence for drug offence can stand where the forwarding note is not produced and its copy lacks sample seal.
Colour shows how this judgement treated each authority
Krishnan vs. StateApplied¶47
_Krishnan_ vs. _State_ (2015 (2) KLT SN 8)
E. KRISHNAN
STATE OF KERALA
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P. BHAVADASAN
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