Allowed

Kunju Pillai, v. State of Kerala,Rep.by Excise Inspector

Kerala HC25 Nov 2020CRL.A/144/2006

Case brief

AI extract

What is this about?

In this appeal against conviction under the Abkari Act, the court held that the absence of critical linking documents, namely the forwarding note and property list, required to prove the chain of custody, entitled the appellant to the benefit of doubt, resulting in acquittal.

What did the court decide?

Conviction and sentence set aside; appellants set at liberty; bail bond cancelled.

Kunju Pillai, Vs State of Kerala,Rep.by Excise Inspector — Corruption | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942

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CRL.A.No.144 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 520/2004 DATED 08-12-2005 OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA

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AGAINST THE ORDER/JUDGMENT IN CP 15/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR

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APPELLANT/ACCUSED:

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1 KUNJU PILLAI, S/O.ADICHAN, MYLAKKUZHIYIL VEEDU, ANGADICKAL VADAKKU MURI, ANGADICKAL VILLAGE, ADOOR TALUK.

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2 BABU, S/O.PODIAYAN, MYLAKKUZHIYIL VEEDU, ANGADICKAL VADAKKU MURI, ANGADICKAL VILLAGE, ADOOR TALUK.

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BY ADV. SRI.PRAKASH P.GEORGE

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA,REP.BY EXCISE INSPECTOR REPRESENTED BY EXCISE INSPECTOR, ADOOR RANGE, PATHANAMTHITTA DISTRICT THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR

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SRI.K.B.UDAYAKUMAR, SR.PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.144 OF 2006

JUDGMENT

Dated this the 25th day of November 2020

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This criminal Appeal is filed by the accused in Sessions case No.520/2004 on the file of the Additional Sessions Judge (Ad-hoc) Fast Track Court I,

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Pathanamthitta.

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Above case is charge sheeted by the Excise

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Inspector, Adoor Range alleging offence punishable under Section 55(g ) of the Abkari Act.

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The prosecution case is that, on 13.07.2000 at 05:30 p.m, when the preventive officer and party of Adoor Excise Range Office searched the house of the second accused at Kodumon Panchayath, they found the

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first and second accused in possession of and dealing

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with 30 liters of wash in a pot and 280 liters of wash

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in 8 cannasses from that house. Hence, it is alleged that, the accused committed the offence.

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To substantiate the case prosecution examined

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CRL.A.No.144 OF 2006

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PW1 to PW6 . Exhibit P1 to P 13 were also marked.

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After going through the evidence and documents

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the trial court found that, the accused committed the offence under section 55(g) of the Abkari Act. They are sentenced to under go rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1,00,000/each under Section 55(g) of the Abkari Act. In default of payment of the fine amount the accused are directed

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to undergo simple imprisonment for a period of 2 years.Aggrieved by the conviction and sentence this crl.Appeal is filed.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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The learned counsel for the appellants submitted that, the accused in this case is entitle the benefit of doubt for the simple reason that, the forwarding note is not marked in the case. The learned counsel for the appellants submitted that, the forwarding note is an important document as far as Abkari cases are considered. The learned Public Prosecutor submitted that the prosecution proved the offence.

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CRL.A.No.144 OF 2006

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The point for consideration in this appeal is,

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whether the accused committed the offence under Section 55(g) of the Abkari Act.

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The prosecution has to prove that , the seized articles reached in the hands of the analyst. It is the duty of the prosecution to prove all the links starting from seizure of the contraband, till it reaches in the hands of the analyst. To rely ExhibitP.10 Chemical Analysis report, the prosecution has to prove that, the property seized from the possession of the accused reached in the hands of the analyst. To prove the same the forwarding note is a material document to be produced by the prosecution. That is a fatal document. If that is not produced, the accused is entitle the benefit of doubt. Admittedly, in this case the forwarding note is not marked.

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In Abkari cases, forwarding note is important

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because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of

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the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands

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CRL.A.No.144 OF 2006

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of the analyst. Forwarding note is one of the links to prove the prosecution case in Abkari cases.

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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) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96). The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder:

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“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 CRL.A.No.1593 OF 2005 8 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 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”

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It is also pointed out that, the property

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CRL.A.No.144 OF 2006

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list is not marked in this case. With out property list

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there is no evidence to the court to show that when exactly the property reached the court. Since there is no property list marked, the accused is entitle the benefit of doubt.

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In the light of the above discussion, I think,

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the appellants in this case are entitle the benefit of doubt.

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Therefore, this Criminal Appeal is allowed.

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Conviction and sentence imposed on the appellants as per judgment dated 08.12.2005 in S.C.No.520/2004 on the file of the the Additional Sessions Judge (Ad-hoc) Fast Track Court I, Pathanamthitta is set aside. The appellants are set at liberty . Bail bond, if any, executed by the appellants are cancelled.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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Jms //True Copy// P.A to Judge

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CRL.A.No.144 OF 2006

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Kunju Pillai, v. State of Kerala,Rep.by Excise Inspector

Case brief

What is this about?

What did the court decide?

Kunju Pillai, v. State of Kerala,Rep.by Excise Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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