JUDGMENT

This appeal is filed against the judgment dated 15.12.2005 in S.C.No.717/2000 on the files of Additional Sessions Judge (Abkari), Kottarakkara. The accused was charge sheeted alleging offence punishable under Section 55(g) of the Abkari Act.

2. The prosecution case is that on 29.8.1997, at 1 pm, the accused was found in possession of 315 litres of wash in 9 jerry cans of 35 litres capacity and 35 litres of wash in an aluminium pot. Both items were covered by a gunny bag kept in the kitchen room of Choondali Puthen Veedu bearing No.XII/244 of Pavithreswaram Panchayat in which the accused was alleged to be resided.

3. To substantiate the case of the prosecution, PW1 to PW6 were examined as witnesses and Exts.P1 to P5 were marked. MO1 to MO3 were the material objects identified. After going through the records, and evidence the lower court found that the accused committed the offence under Section 55(g) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default, to undergo rigorous imprisonment for three more months. Aggrieved by the conviction and sentence this criminal appeal is filed.

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

5. The learned counsel for the appellant submitted that there is absolutely no evidence to connect the appellant/accused in this case. The counsel submitted that the accused was not arrested from the spot. According to the prosecution case, he ran away from the spot. After that, the accused was identified by the police from the spot. The counsel submitted that the identity of the accused was not proved by the prosecution. Moreover, the counsel also submitted that the contraband articles were seized from the house from where the accused ran away. The ownership of that house is not proved by the prosecution. According to the prosecution, the house belongs to one Paulose and the accused was residing in the house as a lessee. The above Paulose was not examined. In addition to all, the counsel submitted that the forwarding note is not marked and that itself is enough to acquit the accused.

6. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the accused.

7. The point for consideration is whether the accused committed the offence under Section 55(g) of the Abkari Act.

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

The importance of forwarding note is considered by this Court in several judgments. 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. 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 analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1)