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2022 Supreme(Online)(KER) 41726
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
UNNIKRISHNA PILLAI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2272 2007
The forwarding note is essential in Abkari cases to establish a tamper-proof chain of custody for seized items; unauthorized detection vitiates prosecution.
Headnote:
Abkari - Conviction Appeal - Abkari Act - Sections 8, 55 - The court emphasized that the lack of a forwarding note and the unauthorized status of the arresting officer void the prosecution's case, leading to the acquittal of the appellant.
Fact of the Case:
The appellant was convicted for transporting illicit arrack based on evidence provided by an unauthorized Asst. Excise Inspector without the necessary forwarding note.
Finding of the Court:
The court found that the prosecution failed to meet its burden of proof due to the absence of a forwarding note and the lack of authorization of the arresting officer.
Issues: Whether the failure to produce a forwarding note and the unauthorized officer's actions invalidate the prosecution in an Abkari case.
Ratio Decidendi: The absence of a forwarding note and the requirement for authorized officers were critical in determining the prosecution's failure to prove its case.
Final Decision: The conviction and sentence are set aside, and the appellant is acquitted.
JUDGMENT
The above appeal is filed against the conviction and sentence imposed on the appellant as per judgment dated 19.11.2007 in S.C. No. 486/2003 on the file of the Addl. Sessions Judge Fast Track Court (Adhoc) Mavelikkara. The above case is chargesheeted against the appellant alleging offences punishable under Secs. 8(1) and (2) and 55(a) of the Abkari Act .
2. The prosecution case is that on 24.3.2001 at 8.00 pm, CW1 Asst. Excise Inspector Mavelikkara Excise Range Office and party while on patrol duty through Thamarakulam Village, Chathiyara Muri, Chathiyara Kaliyan Market Road when reached in front of the house of Shaji Manzil Habeeb found accused transporting illicit arrack of about 1 litre in a plastic bottle of 1 ½ litres, seized the property, arrested the accused and chargesheeted the case.
3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P7 were marked. DW1 is one of the witness examined on the side of the defence. After going through the evidence and documents, the trial court found that the accused committed the offence under Secs. 8(1), (2) and 55(a) of the Abkari Act . The accused is sentenced to undergo rigorous imprisonment for a period of 3½ years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) under Secs. 8(1) and 55(a) of the . In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. The learned counsel for the appellant raised two points. The 1st point is that forwarding note is not marked in this case. The counsel submitted that forwarding note is fatal in abkari cases and non production of the same is fatal to the prosecution. The counsel also submitted that the detection in this case is by an Asst. Excise Inspector. Asst. Excise Inspector is not an authorised officer as per the Abkari Act . The learned Public Prosecutor on the other hand submitted that there is oral and documentary evidence to prove the case.
6. This Court considered the contentions raised by the appellants. It is a settled position that if the forwarding note is not marked in an abkari case, that is fatal to the prosecution. For that reason itself, the entire prosecution will collapse. 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.
7. 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) andPrakasan 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 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)).”
8. Moreover, the Asst. Excise Inspector is not an authorised officer for detection till 8.5.2009. The
