Allowed

V.S. Sasikumar @ Adimaly Sasi v. Govt. of Kerala

Kerala HC22 Feb 2021CRL.A/116/2006

Case brief

AI extract

What is this about?

This criminal appeal challenged conviction for possessing illicit liquor under the Abkari Act. The High Court quashed the conviction, ruling that the absence of a forwarding note prevented proof of the chain of custody. Furthermore, the flagrant flight of the accused from the house did not establish warrantless possession, warranting a benefit of doubt.

What did the court decide?

Criminal appeal allowed; impugned conviction and sentence set aside; appellant set at liberty; bail bond cancelled.

V.S. Sasikumar @ Adimaly Sasi Vs Govt. of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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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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MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

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CRL.A.No.116 OF 2006

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AGAINST THE JUDGMENT IN SC 717/2000 DATED 15-12-2005 OF THE ADDITIONAL SESSIONS JUDGE (ABKARI), KOTTARAKKARA

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APPELLANT/ACCUSED:

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V.S. SASIKUMAR @ ADIMALY SASI CHOONDALI PUTHEN VEEDU, EAST MARANADU MURI,, PAVITHRESWARAM VILLAGE, OTHERWISE RESIDING, AT SARITHA MANDIRAM, THEVALAPPURAM DESOM,, PUTHOOR VILLAGE, KOTTARAKKARA TALUK.

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BY ADVS. SRI.K.K.CHANDRAN PILLAI SRI.REJOY RAJ

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RESPONDENT/RESPONDENT:

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GOVT. OF KERALA REP.BY THE EXCISE INSPECTOR, KOTTARAKKARA,/ PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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BY SMT.S.L.SYLAJA, PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.A.No.116/2006

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P.V.KUNHIKRISHNAN, J.

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Crl.A.No.116/2006

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Dated this the 22^nd day of February 2021

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JUDGMENT

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This appeal is filed against the judgment dated 15.12.2005 in S.C.No.717/2000 on the files of Additional Sessions Judge (Abkari), Kottarakkara. The accused was charge sheeted alleging offence punishable under Section 55(g) of the Abkari Act.

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The prosecution case is that on 29.8.1997, at 1 pm, the accused was found in possession of 315 litres of wash in 9 jerry cans of 35 litres capacity and 35 litres of wash in an aluminium pot. Both items were covered by a gunny bag kept in the kitchen room of Choondali Puthen Veedu bearing No.XII/244 of Pavithreswaram Panchayat in which the accused was alleged to be resided.

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To substantiate the case of the prosecution, PW1 to PW6 were examined as witnesses and Exts.P1 to P5 were marked. MO1 to MO3 were the material objects identified. After going through the records, and evidence the lower court found that the accused committed the offence under Section 55(g) of the Abkari Act and he

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Crl.A.No.116/2006

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was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default, to undergo rigorous imprisonment for three more months. Aggrieved by the conviction and sentence this criminal appeal is filed.

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

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The learned counsel for the appellant submitted that there is absolutely no evidence to connect the appellant/accused in this case. The counsel submitted that the accused was not arrested from the spot. According to the prosecution case, he ran away from the spot. After that, the accused was identified by the police from the spot. The counsel submitted that the identity of the accused was not proved by the prosecution. Moreover, the counsel also submitted that the contraband articles were seized from the house from where the accused ran away. The ownership of that house is not proved by the prosecution. According to the prosecution, the house belongs to one Paulose and the accused was residing in the house as a lessee. The above Paulose was not examined. In addition to all, the counsel submitted that the forwarding note is not marked and that itself is enough to acquit the accused.

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The Public Prosecutor submitted that there is oral and

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documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the accused.

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The point for consideration is whether the accused committed the offence under Section 55(g) of the Abkari Act.

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Admittedly, the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several judgments. 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. 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 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

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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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Moreover, it is an admitted fact that the accused was not

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arrested from the spot. According to the prosecution, the accused ran away from the spot. Simply because a person ran away from the spot after seeing the Excise Officials, it cannot be presumed that he committed the offence. This Court in Santhosh v. State of Kerala (2007 (1) KHC 1032) observed as follows:

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“10. In short, possession simpliciter alone is proved. Of course, there is a further indication that the petitioner took to his heels when he was intercepted by the police. Many persons in this country may resort to that course when confronted by the police even while performing legitimate and legal pursuits. That circumstance, by itself, cannot lead to a ready inference even at the stage of taking congnizance that the articles in question were possessed for the purpose of illicit manufacture of liquor. “

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Therefore, unless there is any other evidence to connect the accused, there cannot be a conviction against the appellant/accused merely because the accused ran away. In this case, the prosecution case is that the accused ran away from a residential house. According to the prosecution, the house belongs to one Paulose. But he was not examined. The further case of the prosecution is that the above Paulose gave this house to the accused on lease. There is no evidence

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regarding the same. Therefore, simply because the accused has ran away from a house, there cannot be a presumption that the contraband articles seized from that house were in the conscious possession of the appellant/accused. In the light of the above discussion, I think that the appellant/accused is entitled to the benefit of doubt.

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Therefore, Crl.A.No.116/2006 is allowed. Judgment dated 15.12.2005 in S.C.No.717/2000 on the file of the Additional Sessions Judge (Abkari), Kottarakkara is set aside. The appellant/accused is set at liberty. The bail bond, if any, executed is cancelled.

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Sd/-

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P.V.KUNHIKRISHNAN

True copy

JUDGE

P.A. To Judge