Madhya Pradesh High Court: Bechu Kurian Thomas, J., allowed the instant appeal against the impugned order of Additional Sessions Court, whereby the Sessions Court had held the appellant guilty for the offence under Sections 8(2) and 55(a) of the Abkari Act.
On 17-07-2001, the accused was found in possession of 700 ml of arrack for sale in a hotel name “Santhosh” ran by him. The contraband was seized and the crime was registered under Sections 8(2) and 55(a) of the Abkari Act against the accused. Thereafter, the Sessions Court convicted the accused and sentenced him with imprisonment for one year and a fine of Rs 1,00,000, in default of which rigorous imprisonment for three months was awarded.
Counsel for the appellant, T. Madhu submitted that the prosecution case suffered from a fatal flaw as no forwarding note had been produced in evidence. Also, there was unexplained delay in producing the contraband alleged to be seized from the accused which suggested a further flaw, thereby, entitling the accused for acquittal.
The respondent stoutly opposed abovementioned contentions and submitted that in the instant case, the contentions raised had no bearing.
The Court observed that though the date of arrest of the accused and the date of seizure of the contraband was 17-07-2001, the contraband was produced before the Court only on 23-07-2001 after the delay of six days. The prosecution had not explained the delay in production of the contraband before the Court nor had they explained as to who was in custody of the contraband during the said period. It had been deposed by the prosecution that there was no hurdle in producing the contraband before the court. Therefore, the abovementioned irregularities had created doubt on the veracity of prosecution case. The Court cited Gopalan v. State of Kerala, 2016 (3) KLT SN 24, wherein it was held that in the absence of the forwarding note, the prosecution had failed 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 had not produced the forwarding note, the prosecution had failed to prove the guilt of the accused and accordingly the accused was held entitled to be acquitted.
In the view of above, the Court set aside the impugned judgment. [Sivadasan Pillai v. State of Kerala, CRL.A.No.642 of 2007, decided on 21-12-2020]
