KUMARAN, S/O. KANDAPPAN, v. STATE OF KERALA

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alleged that the accused committed the aforesaid offences.

3. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P8 were marked on the side of the prosecution. MO1 to MO5 are the material objects. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for a period of two 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 further period of six months. 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 counsel for the appellant submitted that Ext.P7 forwarding note is silent with regard to the name of the person through whom sample was forwarded to the analyst. The counsel relied judgment of this court in P. Kumaran v. State Of Kerala [2016(4) KLT 718]. The counsel also submitted that as per Ext.P7 forwarding note, the sample was despatched on 05.06.1998. A perusal of Ext.P8 analysis report will show that the sample was received by the Excise guard K.N.Narayanan Nair on

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16.06.1998, who was in custody of the sample from 05.06.1998 till 16.06.1998. It is not explained by the prosecution. The counsel submitted that the appellant is entitled to the benefit of doubt.

6. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case and this Court may not acquit the accused on technical grounds.

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

8. Admittedly, the forwarding note is silent with regard to the name of the person with whom the sample is sent. That portion is seen unfilled in Ext.P7 forwarding note. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in P. Kumaran v. State Of Kerala [2016 (4) KLT 718] held as follows:

"There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard

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Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason

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also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.

9. Moreover, as per Ext.P7 forwarding note, the sample is despatched on 05.06.1998 to the Assistant Chemical Examiner to Government. But as per Ext.P8 Analyst report, the sample is received by the analyst only on 16.06.1998 through Excise Guard K.N.Narayanan Nair. The above Excise guard Narayanan Nair is not examined. He was in custody of the samples from 05.06.1998 till 16.06.1998. It is not explained by the prosecution. It is the fundamental duty of the prosecution to prove that the seized articles reached in the hands of the analyst. If the prosecution is not able to prove the same, the accused is entitled to the benefit of doubt. In this case, the prosecution miserably failed to prove the fact that who is in custody of the sample from 05.06.1998 till 16.06.1998, on which date the sample received by the analyst, I think, the accused is entitled to benefit of doubt.

Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 08.06.2006 in Sessions Case No.237 of 2003 on

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the files of the Additional Sessions Judge, Fast Track Court No.III, Palakkad is set aside. The appellant is set at liberty and the bail bond, if any, executed by him stands cancelled.

Sd/-

P.V.KUNHIKRISHNAN

JUDGE

DK