JUDGMENT

Dated this the 7th day of April 2021 The accused in S.C.No.1995/2001 on the file of the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara has filed this appeal being aggrieved by the judgment dated 31.10.2006, whereby he has been found guilty of offence punishable under Section 58 of the Abkari Act and convicted and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ₹1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 months.

2. The case of the prosecution is that the Assistant Sub Inspector of Police, Neyyardam Police Station, on 13.03.2000 at about 10.00 a.m., received information over phone that arrack was being stored in a cow-shed close to the house of one Simon. On reaching the place, he has stated to have found the accused pouring arrack from a 20 litre size black jerrycan into a 5 litre can and that he abandoned the contraband articles and ran away on seeing the Police. According to the prosecution, they found two 20 litres capacity black jerrycans, one filled fully with arrack, one filled with 16 litres of arrack and a 5 litre can containing 4 litres of arrack. According to the prosecution, the thondy articles were produced before the court. Before the trial court, PW1 to PW7 were examined on the side of the prosecution and Exts.P1 to P9 were marked. On the side of the defence, Exts.D1 to D9 were marked and DW1 and DW2 were examined. On the basis of the evidence on record, the court below found the accused guilty of the offences, convicted him and imposed on him the sentence referred above.

3. Heard.

4. Even though several contentions have been taken in the memorandum of appeal, I find that the appellant is entitled to succeed in this appeal for the reason that no forwarding note has been produced, proved and marked in this case. On a perusal of the records, it is evident that the Detecting Officer had not taken samples from the spot and the entire thondy articles were produced before the court. Even though the detection is said to have taken place on 13.03.2000, it can be seen from Ext.P3 thondy list that the contraband articles were produced before the court only on 15.03.2000. It is further seen that on the very same day, the entire thondy articles were returned to the SHO for keeping the same in safe custody until further orders. This fact is further affirmed in Ext.P9, which is the extract of page 39 of the thondy register. Neither the thondy register nor the thondy list state anything about the sample being taken from the contraband articles and keeping the same in sealed condition. No proceedings of the Magistrate whereby the Thondy Clerk was authorised to take sample has been produced. Though the Thondy Clerk was examined as PW6, there is nothing in his evidence which clearly points out to the taking of the sample in a manner permissible. Even though in the chief examination he stated that he had taken sample in 3 bottles on directions from the Magistrate, during the cross examination, he says that the order of the Magistrate was only oral and it has not been recorded in the thondy register. He also says that he has no training for taking samples and that nothing has been recorded regarding any seal or label. When there is no clear evidence regarding the taking of the sample, the failure to produce and prove the forwarding note assumes more importance. This Court has held in so many decisions that the failure to produce and prove the forwarding note is fatal for the prosecution case and that it leads to a situation where the Court would not be able to hold that the very same sample which was collected from the contraband articles had reached the Chemical Examiner for analysis in a tamper proof condition. [see Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KHC 455) and Sadasivan @ Para V.

State of Kerala reported in (2020 KHC 478)].

5. In the above circumstances, the appellant is enti