Sivadasan Pillai vs State Of Kerala And Anr

The appellant was the accused in SC.No.415/2005 on the files of the Additional Sessions Court (Ad hoc-II), Thodupuzha. By judgment dated

22.03.2007, he was found guilty for the offence under Section 8(2) and 55(a) of the Abkari Act. A sentence of imprisonment for one year and a fine

of Rs.1,00,000/- in default to undergo rigorous imprisonment for three months for the offence under Section 55(i) of the Act was imposed. No

separate sentence under Section 55(a) was imposed.

The prosecution case was that on 17.07.2001, in a hotel by name 'Santhosh' run by the accused, he was found in possession of 700 ml of arrack for

sale and on search by PW1, the contraband was seized and the accused arrested. Thereafter, the crime was registered and after committing the case

to the Sessions Court, the trial was conducted and the accused was convicted. Sentence as aforesaid was imposed upon the accused.

In order to prove the prosecution case, PWs 1 to 5 were examined and Exts.P1 to P6 were marked apart from MOs 1 & 2. After analysing the

evidence in the case, the learned Sessions Judge found the accused guilty and imposed the sentence as mentioned earlier. Aggrieved by the said

judgment, the appellant has preferred this appeal.

I have heard Adv.Madhu T, the learned counsel for the appellant as well as Adv.Rekha C.Nair, the learned Public Prosecutor.

Adv.Madhu, at the outset itself submitted that the prosecution case suffers from a fatal flaw, which alone is sufficient to acquit the accused. He

submitted that the forwarding note has not been produced in evidence which entitles the accused to an acquittal in the instant case. However, he

pointed out a further flaw in the prosecution case by referring to the delay in producing the contraband alleged to be seized from the accused.

The learned Public Prosecutor stoutly opposed and submits that in the nature of the case, the contentions raised have no bearing.

It is true that even though the date of arrest of the accused and the date of seizure of the contraband was on 17.07.2001, the contraband were

produced before the court only on 23.07.2001 after the delay of six days. It is settled that the delay has to be explained by the prosecution. PW1 has

not explained the delay in producing the contraband before court nor has he explained as to who was in custody of the contraband during the said

period. In fact, PW1 during his evidence deposed that there was no hurdle in producing the contraband before the court along with Ext.P2 arrest

memo. A perusal of Ext.P2 shows that it was produced before the court on 18.07.2001. In such circumstances, I find merit in the contention of the

learned counsel for the appellant that the delay in producing the contraband has not been properly explained by the prosecution and it creates doubt on

the veracity of the prosecution case.

The evidence adduced in the case leads much to be considered, especially since the forwarding note was not marked in the case. It has been held

in Joseph v. State of Kerala [2009 (4) KHC 537] and in Gopalan v. State of Kerala [2016 (3) KLT SN 24 (C.No.16)] that in the absence of the

forwarding note, the prosecution fails to establish the link connecting the accused with the contraband seized and the sample analysed. The absence of

the forwarding note is undoubtedly fatal to the prosecution case. Since in the instant case, the prosecution has not produced the forwarding note, the

prosecution has failed to prove the guilt of the accused and accordingly the accused is entitled to be acquitted.

In the result, the appeal is allowed and the conviction and sentence imposed on the accused in SC.No.415/2005 on the files of the Additional Sessions

Court (Ad hoc-II), Thodupuzha is set aside. The accused shall be set at liberty. The bail bond executed shall stand cancelled. The fine amount, if

remitted shall be refunded.