Sasikumar vs State Of Kerala

These are appeals preferred under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the legality

and correctness of the judgments of the Additional Sessions Judge (Abkari Act Cases), Kottarakkara in S.C.Nos.1579/2002 and 1415/2007

respectively. Both those cases arose from the final report laid by the Circle Inspector of police, Kulathupuzha in Crime No.208/2000 of Kulathupuzha

police station. The prosecution allegation is that on 14.07.2000 at 5.30 p.m., the Sub Inspector of police of Kulathupuzha police station and party found

the appellants possessing and vending arrack inside reserve forest in Arippa beat of Anchal forest range, about 100 metres west of Chozhiyakkodu

Madan nada in Chozhiyakkodu muri in Thinkalkarikkam village. According to the prosecution, both the appellants were apprehended with the

contraband, 2 litres of arrack in a jerry can of 5 litres capacity; the items were seized under a mahazar prepared in the presence of independent

witnesses; sample was also collected from the spot. After arresting the appellants the crime was registered and both the appellants and the

contraband were produced before court. After completing investigation the charge sheet was laid before the Judicial First Class Magistrate-I, Punalur

where the case was taken on file as C.P.186/2000. After completing the procedural formalities the case was committed to the Sessions Court, Kollam

from where it was made over to the trial court.

The appellants were on bail. They were defended by counsel of their choice. After hearing counsel on both sides, when charge for offence

punishable under Section 55(a) and (i) of the Abkari Act was framed, read over and explained, both pleaded not guilty.

The prosecution charge contains six witnesses. Barring CWs 4 and 6, others were examined as PWs 1 to 4. Exts.P1 to P6 were also marked.

Material objects were identified and marked as MOs 1 and 2. On completion of prosecution evidence, when examined under Section 313(1)(b)

Cr.P.C., they denied all the incriminating evidence tendered against them. As it was not a fit case to be acquitted under Section 232 Cr.P.C., the

learned Judge called upon the appellants to adduce evidence in defence. But there was no evidence in defence. It is seen that by judgment dated

27.10.2007 the second accused, who is the appellant in Crl.A.No.2162/2007, was found guilty and convicted for offence punishable under Section

55(a) of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple

imprisonment for six months. He was found not guilty under Section 55(i) of the Abkari Act and acquitted thereunder. In fact, page 7 of the judgment

in S.C.1579/2002 shows that both the appellants were found guilty, convicted and sentenced, whereas the facing sheet indicates that the case against

the first accused was split up. The reason for such splitting up cannot be inferred from the judgment. But there are reasons to suggest that, after

completion of evidence the first accused had gone absconding, which necessitated filing a separate Sessions Case namely S.C.1415/2007 against him.

Later, by judgment dated 12.02.2008 in S.C.1415/2007, basing on the very same evidence the first accused, who is the appellant in Crl.A.No.480/2008

was found guilty and convicted under Section 55(a) of the Abkari Act and awarded a sentence similar to one imposed on the second accused. He was

also found not guilty and acquitted of offence under Section 55(i) of the Abkari Act. Thus the appellants have come up in appeal.

I heard the learned counsel for the appellants and the learned Public Prosecutor. The trial court records were also perused.

The counsel submitted that independent witnesses have not supported the prosecution case, the alleged incident had happened inside reserve forest,

so that presence of independent witnesses was not possible. PWs 3 and 4 police constable and Sub Inspector have not given satisfactory and

consistent evidence about the role of the appellants. It was also pointed out that there was delay in producing the material objects to the court, that

there is no satisfactory explanation for the delay, that it is not explained, in the meantime, the contraband was kept in safe custody, beyond

manipulation.

Evidently the incident had happened inside the reserve forest, in Arippa beat of Anchal forest range. PWs 1 and 2 were cited as independent

witnesses to prove the mahazar under which the contraband was seized from the appellants. But both of them denied having witnessed the

occurrence or attested the mahazar and thus they were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. PWs 3

and 4 are the police constable and Sub Inspector respectively. Both of them supported the prosecution case. According to PW4 the Sub Inspector, on

14.07.2000, while himself and party were engaged in law and order patrol duty, when they reached near Chozhiyakkodu Madan nada, information

received regarding sale of arrack. Thus they stopped the vehicle near the Madan nada and went inside the reserve forest, found the appellants

remaining there carrying the jar and a glass; the first accused carried the jar and the other, the glass tumbler; seeing the police they tried to run away,

but intercepted and found carrying arrack in the jar. Sample was collected from the jar and the items were seized under Ext.P3 mahazar. Both the

appellants were arrested and after reaching back police station, the crime was registered. The appellants were produced before the court on the next

day. He also proved the chemical analysis report marked as Ext.P6 which shows that the sample contained 42.01% by volume of ethyl alcohol. He

also conducted investigation.

As rightly concluded by the learned Additional Sessions Judge, the defence could not make inroads into the testimony of the Sub Inspector. PW3

the constable who accompanied PW4 also gave a similar version. Thus basing on the oral testimony of PWs 3 and 4, the learned Judge proceeded to

convict the appellants. Such a finding cannot be faulted.

All the same, two contentions raised by the learned counsel for the appellants cannot be ignored by this Court. Firstly, there is no forwarding note

proving the sending of the sample for chemical analysis report. It is the consistent stand of this Court that non- production of forwarding note in such a

case is fatal to the prosecution. (See Unnikrishnan Nair v. State of Kerala [2020 (4) KLT 376] etc.) Though the Ext.P6 indicates that seal on the

bottle was intact and found tallied with the sample seal provided, when the absence of a forwarding note is highlighted by the defence, much

importance cannot be attributed to the statement that the seal was intact etc. In fact, the forwarding note is the connecting link between the sample

and the Ext.P6 report. The Apex Court has stated in unambiguous terms that the mere production of a laboratory report indicating the contents of the

sample cannot be conclusive proof by itself; the sample seized and that tested have to be correlated. In the absence of forwarding note, such a

correlation is not possible.

Secondly, it has come out that though the contraband was seized on 14.07.2000 and the appellants were produced before the court on 15.07.2000,

the items were produced in court only on 19.07.2000, as evident from Ext.P5 property list. Though PW4 claimed that the items were kept in his safe

custody till it were produced in court, in the absence of better materials, such an assertion cannot be accepted on its face value. This aspect also takes

the defence version a long way.

On these considerations, the prosecution cannot be held succeeded in proving the guilt of the appellants beyond reasonable doubt. These are

matters capable of doubting the credentials of the prosecution. As a necessary corollary, benefit of such lapses shall be given to the appellants. Thus

the appellants are entitled to the benefit of doubt.

On these considerations, the conviction and sentences imposed on the appellants are liable to be interfered with. Both the appeals are allowed. In

reversal of the conviction and the sentences imposed, the appellants are found not guilty and acquitted under Section 386(b)(i) Cr.P.C. Bail bonds shall

be cancelled and they shall be set at liberty. Fine amount, if any, collected shall be refunded.