Allowed

Thankappan @ Unnikrishnan v. State of Kerala

Kerala HC6 Jan 2021CRL.A/2101/2007

Case brief

AI extract

What is this about?

The Kerala High Court allowed a criminal appeal, setting aside the conviction and sentence under the Abkari Act. The court held that the absence of a mandatory forwarding note and a lengthy, unexplained delay in filing the final report rendered the prosecution evidence insufficient. The appellant was set at liberty.

What did the court decide?

Conviction and sentence set aside; appellant remanded to liberty; bail bond cancelled; fine remitted.

Thankappan @ Unnikrishnan Vs State 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 BECHU KURIAN THOMAS

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WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

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CRL.A.No.2101 OF 2007

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AGAINST THE ORDER/JUDGMENT IN SC 666/2006 DATED 11-10-2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR

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APPELLANT/S:

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THANKAPPAN @ UNNIKRISHNAN AGED 50 YEARS S/O. SANKU, THANDANKAVIL HOUSE,, PULAKODU VILLAGE AND DESOM, THALAPPILLY TALUK.

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK

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RESPONDENT/S:

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STATE OF KERALA REPRESENTING EXCISE INSPECTOR,, PAZHAYANNUR RANGE, REP. BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR MAYA M N GP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2101 OF 2007

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JUDGMENT

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Dated this the 6th day of January 2021

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The appellant challenges the conviction and sentence imposed on him in SC No.666/2006 on files of the Additional Sessions Judge, Ad-hoc (Fast Track-I), Thrissur.

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By the impugned judgment, accused has been found guilty for the offence under Section 58 of the Abkari Act (For short the Act) and has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. One lakh and in default, to undergo simple imprisonment of two months for the offence as mentioned above.

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The prosecution case was that the accused was found possessing 10 liters of arrack on the Panchayat road lying in front of the house of Ramanunni S/o. Sanku, situated

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CRL.A.No.2101 OF 2007

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at Pulakkod desom in Pulakkod village at 8.30 a.m, on 03.02.2004, which was detected by PW5, who was the Preventive Officer attached to the Excise Range Office, thereby committing the offence punishable under Section 58 of Abkari

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Act. After filing the final report, the case was committed to the court of Session.

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In order to prove the prosecution case, PWs 1 to 5

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were examined and Exts.P1 to P7 were marked and the can containing arrack was marked as MO1. After analysing the prosecution case, the learned Sessions Judge found the accused guilty and sentenced him as stated earlier.

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The learned counsel for the appellant confines his submissions to two points:

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The forwarding note, which is a mandatory requirement to connect the accused with the alleged crime, was not produced or marked in the case, and

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1. There was a delay in filing the final report.

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CRL.A.No.2101 OF 2007

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He submits that on both these grounds, the accused is

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entitled to the benefit of doubt and beseeches this Court to acquit the accused.

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The learned public Prosecutor Smt.Maya M.N., submits that even though, the absence of forwarding note is generally fatal, in the instance case, sufficient material were available to connect the accused with the crime and hence, the appeal ought to be dismissed. She also points out that the delay in filing the final report is not very long, so as to warrant an acquittal and also sufficient explanation were provided by the Investigation Officer for the alleged delay.

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I have considered the rival contentions in this case. It is settled that absence of forwarding note is fatal to the prosecution. It has been held by this Court in several judgments, including the decision cited by the learned counsel for the appellant in Sadasivan @ Para v. State of Kerala and

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CRL.A.No.2101 OF 2007

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another (2020 KHC 478).

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A perusal of the documents produced and marked as Exts.P1 to P7 during trial shows that the prosecution had not produced or marked the forwarding note before the trial court. In the absence of the forwarding note, the alleged sample sent for chemical examination, cannot be said to be the one that was actually seized from the place of occurrence or from the possession of the accused. In the absence of the forwarding note, the accused is entitled to the benefit of doubt. The prosecution evidence falls for short of proof beyond reasonable doubt.

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Even on the aspect of the delay in filing the final report, the learned counsel for the appellant relies upon the decision in Kumaran v.State of Kerala (2016 (4) KLT 718) and points out that though the date of occurrence was on 03.02.2004, the final report was filed only on 07.06.2005, which is after a delay of 1 year and 4 months. On going through the

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CRL.A.No.2101 OF 2007

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evidence of prosecution witnesses, it is seen that absolutely no explanation is forthcoming from the prosecution side as to the delay of 1 year and 4 months in filing the final report after the date of detection. In the decision cited by the learned counsel for the appellant in Kumaran v.State of Kerala (2016 (4) KLT 718) , al most an identical delay of 1 year and 4 months was found by this Court to be fatal to the prosecution case, especially in the absence of any explanation. The long and unexplained delay in conducting the investigation and filing the final report renders the accused entitled to the benefit of doubt.

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In view of the above, the prosecution case stands on a shaky ground and the accused is accordingly, entitled to the benefit of doubt. The finding of guilt upon the accused is therefore, liable to be interfered with.

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Accordingly, I set aside the conviction and sentence imposed upon the accused in SC No.666/06 on the files of the

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CRL.A.No.2101 OF 2007

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Additional Sessions Judge, Ad-hoc (Fast Track-I), Thrissur. The accused is set at liberty and the bail bond stands cancelled.

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Fine amount if any remitted shall be refunded to the accused.

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The appeal is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS

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JUDGE

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Thankappan @ Unnikrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thankappan @ Unnikrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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