J U D G M E N T

Appellant is the accused in S.C.No. 655/2004 on the file of the Additional District & Sessions (Adhoc) Court-I, Pathanamthitta. The above case is charge sheeted against the appellant by the Excise Inspector, Konni alleging offences punishable under Sections 8(1) & (2) of the Abkari Act.

2. The prosecution case is that, on 14-08-2002 at about

2.30 a.m, the accused was found keeping possession of and carrying 22 litres of arrack in a black cannas of 22 litre capacity carryng the same upon his head and walking through the Konni- Athumbumkulam public road near Konnappara junction by the Konni Excise Range Inspector and party. Hence it is alleged that the accused committed the offence.

3. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P10 are the documents marked on the side of the prosecution. One witness was examined on the side of the defence as DW1. MO1 is the material object.

4. After going through the evidence and the documents, the trial court found that the accused committed the offence punishable under Section 8(1) & (2) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for a period of two years. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

5. Heard the learned counsel for the appellant and the learned Public prosecutor.

6. The learned counsel for the appellant raised a single point. The learned counsel submitted that, the forwarding note is not produced and marked by the prosecution. For that simple reason, the accused is entitled to the benefit of doubt, the learned counsel submitted.

7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case and this Court may not interfere with the conviction and sentence on technical grounds.

8. The point for consideration is that, whether the accused committed the offence punishable Under Section 8(1) & 8(2) of the Abkari Act.

9. Admittedly, the forwarding note is not produced and marked in this case. The relevancy of forwarding note is considered by this Court in several decisions. It is the duty of the prosecution to produce and prove the forwarding note in abkari cases. Admittedly the same is not produced in this case.

10. 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.

11. 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) is 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)).”

11. In the light of the above discussion, I think the appellant in this case is entitled to the b