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2022 Supreme(Online)(KER) 44073
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
JAYACHANDRAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/1838/2008
The absence of necessary procedural safeguards and unreasonable delays in investigation can lead to acquittal due to reasonable doubt.
Headnote:
Abkari - Offences under Abkari Act - Section 8(1), 8(2) - The court emphasized the necessity of proper sealing in forwarding notes and acknowledged the detrimental impact of delayed investigations on prosecution validity, ultimately ruling in favor of the accused due to reasonable doubt.
Fact of the Case:
The appellant was charged under the Abkari Act for carrying arrack. The prosecution presented witnesses and evidence, leading to a conviction that the appellant contested on grounds of evidentiary flaws and investigation delay.
Finding of the Court:
The court found the absence of a seal on the forwarding note and the protracted investigation timeline critical, concluding these factors created reasonable doubt about the prosecution's case.
Issues: Whether the absence of a seal in the forwarding note and the delay in investigation undermined the prosecution's case against the accused.
Ratio Decidendi: The court held that failure to properly seal evidence and significant delays in investigation are fatal to the prosecution's case, establishing reasonable doubt regarding the accused's guilt.
Final Decision: Conviction and sentence set aside, appellant acquitted.
JUDGMENT
The appellant is the accused in SC No.254 of 2006 on the files of the Additional District & Sessions Judge (Adhoc) Court -I, Kollam. The above case is chargesheeted against the appellant alleging offences punishable under Section 8 (1) and (2) of the Abkari Act .
2. The prosecution case is that on 08.12.2002 at 5 pm, the accused was found carrying 3 litres of arrack in a cannas at the road in front of Paul’s cashew factory, Kunnathoor Taluk and thus committed the offence.
3. To substantiate the case prosecution examined PW1 to PW4. Exts.P1 to P8 are the exhibits marked from the side of prosecution. MO1 is the material object. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 8 (1) and (2) of the Abkari Act . The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of three months. Aggrieved by the conviction and sentence, the accused filed this appeal.
4. Heard Adv. Divya C.Balan, who appeared for the appellant and the learned Public Prosecutor.
5. The counsel for the appellant submitted that there is long delay in completing the investigation. The counsel also submitted that in Ext.P7 forwarding note, there is no seal. According to the counsel, in the light of the above points, the appellant is entitled acquittal. The Public Prosecutor, on the other hand, submitted that there is oral and documentary evidence to justify the conviction and sentence imposed by the trial court.
6. The point to be decided in this appeal is whether the accused committed the offence alleged by the prosecution. 7. This Court perused Ext.P7 forwarding note.
Admittedly, there is no seal in the forwarding note. If there is no seal in the forwarding note, that is fatal to the prosecution. The importance of the seal in forwarding note is considered by this Court in several decisions. The prosecution has to prove all the links starting from seizure of contraband till it reaches in the hands of the analyst. To prove the same, the seal in the forwarding note is important. InRavi. v. State – S.I. of Police, Meppadi [ 2018(5) KHC 352 ] and Smithesh v. State of Kerala [ 2019(2) KLT 974 ] this Court considered this point. The relevant portion of the judgment inSmithesh’s case (supra) is extracted hereunder:
“8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.”
8. Moreover, the search, seizure and arrest in this case was on 08.12.2002. The final report was filed on 03.08.2004. There is a long delay in completing the investigation. The delay in completing the investigation is also fatal to the prosecution. This point is considered by this Court in several decisions. InKumaran v. State of Kerala and others [2016 (4) KLT 718] and Cheruvayi Mukundan and others v. State of Kerala [ 2016 (3) KLT 532 ], this Court considered this point.
It will be beneficial to extract the relevant portion of the judgment in Kumaran's case (supra).
6. “The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala , 2015 (1) KHC 822 : 2015 (1) KLD 421
