IMPORTANT POINT
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

JUDGMENT :

The above appeal is filed by the accused in S.C.No.673/2004 on the file of the Additional District and Sessions Judge, (Adhoc) Fast Track Court II, Pathanamthitta. The Sub Inspector of Police, Koodal Police Station filed the charge sheet against the accused alleging the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act.

2. The prosecution case is that the accused was seen offering for sale about 3½ litres of arrack, stored in a 5 litre black can on the eastern courtyard of his residential house by name Parakkottathil Veedu at a place called Parakottam in Koodal Muri and village on 7.6.2003 at 7.25 pm.

3. After going through the prosecution's documents, the trial court framed a charge under Sections 8(1) and (2) of the Abkari Act.

4. To substantiate the case, the prosecution examined PW1 to PW3. Exts.P1 to P8 are the exhibits marked by the prosecution. MO1 is the material object.

5. After going through the evidence and the documents produced by the prosecution, the trial court found that the accused committed the offence under Section 8(2) of the Abkari Act. The accused is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

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

7. The learned counsel for the appellant submitted that no forwarding note is marked in this case. He also argued that there is only interested testimony of PW2 and PW3 to prove the search and seizure. Hence he submitted that the accused is entitled to the benefit of doubt.

8. The learned Public Prosecutor submitted that the prosecution had proved the case in the light of the oral and documentary evidence.

9. The point for consideration is whether the accused committed the offence under Section 8(2) of the Kerala Abkari Act.

10. Altogether three witnesses were examined by the prosecution. PW1 is the independent witness, who turned hostile to the prosecution. PW2 is the Police Constable, who accompanied PW3, the detecting officer at the time of search and seizure. The case of PW1 is that on 7.6.2003 at 7.10 pm, he and his team were on patrol duty. He received information about the sale of arrack, and he proceeded to that place. At that time, the accused was standing at that place, holding a black can on his hand. When the can was seized and searched, it contains about 3½ liters of arrack. The accused was arrested, and the contraband articles were seized after taking samples.

11. Admittedly, the forwarding note is not marked in this case. 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.

12. 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:

“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 analys