The High Court allowed the criminal appeal against conviction and sentence under the Abkari Act. The court held that the failure to produce mandatory forwarding notes and property lists vitiates the prosecution case, entitling the accused to acquittal.
Conviction and sentence set aside; accused set at liberty; bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.1995 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 170/2006 DATED 25-09-2006 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-I), KOTTAYAM
CP 12/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHANGANACHERRY
APPELLANT/ACCUSED:
SASIKUAMR @ SHAJI AGED 39 YEARS S/O. KUNJUMON, MUNDUKALATHIL HOUSE,, KURICHY, CHANGANACHERRY.
BY ADVS. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.MAYA.M.N, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.1995/2006
2
P.V.KUNHIKRISHNAN, J.
Crl.A.No.1995/2006
Dated this the 22nd day of February 2021
JUDGMENT
The appellant is the accused in S.C.No.170/2006 on the files of the Additional Sessions Judge (Adhoc)-I, Kottayam. The case was charge sheeted against the appellant alleging offence under Section 55 (g) and 8(2) of the Abkari Act.
Crl.A.No.1995/2006
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PW6 and Exts.P1 to P6 are marked on the side of the prosecution. MO1 series are the material objects. After going through the oral and documentary evidence, the trial court found that the accused committed offence under Section 55(g) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of the payment of fine, to undergo rigorous imprisonment for six months. Aggrieved by the above conviction and sentence this criminal appeal is filed.
Crl.A.No.1995/2006
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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 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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produced by the prosecution. The relevancy of property list in abkari cases is considered by this Court in several judgments. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property has reached the Court on a particular date and the same was not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked
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by the prosecution, that itself is a ground for acquittal. In the light of the above discussion, I think that the appellant is entitled to get the benefit of doubt.
This appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 25.9.2006 in S.C.No.170/2006 on the files of the Additional Sessions Judge (Adhoc)-I, Kottayam is set aside. The appellant is set at liberty. The bail bond, if any, executed is cancelled.
Sd/-
P.V.KUNHIKRISHNAN
True copy
JUDGE
P.A. To Judge
kp
2 issues framed by the court
Whether the prosecution's failure to produce the forwarding note and property list vitiates the conviction under the Abkari Act.
Whether the accused is entitled to the benefit of doubt due to non-production of essential prosecution documents.
Colour shows how this judgement treated each authority
Gireesh @ Manoj v. State of KeralaReferred¶32
Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79)
Vijayan @ Pattalam Vijayan and another v. State of KeralaReferred¶32
Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814)
Prakasan and another v. State of KeralaReferred¶32
Prakasan and another v. State of Kerala (2016 KHC 96)
2 provisions across 1 enactments
Sasikumar @ Shaji
State of Kerala
P.V. Kunhikrishnan
As recorded by the court registry
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