Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943 CRL.A.No.2009 OF 2006 SC 384/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA CP 105/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS THIRUVALLA APPELLANT/S:
ANILKUMAR AGED 27 YEARS S/O SANKARA NARAYANAN, NARAKATHINAMKUZHY VEEDU, PUTHOOR PADI, KOTTANGAL MURI, KOTTANGAL VILLAGE. BY ADV. SRI.S.MUHAMMED HANEEFF SMT. BINDU DAS. M, AMICUS CURIAE. RESPONDENT/S: STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, PERUMPETTY POLICE STATION, (CRIME NO.130/2003), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: SMT. M. K. PUSHPALATHA, SR.PP, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.
2. The prosecution allegation is that on 9.12.2003 at about 9.40 a.m., the appellant was found in possession of one litre of arrack, in contravention of the provisions of the Abkari Act.
3. Since there is no representation for the appellant, this Court has appointed Adv.Smt.Bindudas M. as the Amicus Curiae to argue the case for the appellant.
4. Heard the learned Amicus Curiae and the learned senior Public Prosecutor.
5. The learned Amicus Curiae has argued that since no seal was affixed on the copy of the forwarding note, the -3- appellant is entitled to be acquitted.
6. The learned Amicus Curiae relied on the decision of this court in Krishnan H. v. State [2015(1) KHC 822] to buttress her argument.
7. It appears that no sample seal was affixed on
Ext.P9 copy of the forwarding note. In Krishnan H. (supra), the Court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient to presume that the sample seal was not provided in the original Forwarding Note. In this case, no evidence was adduced by the prosecution to show that the sample seal was affixed on the original forwarding note.
8. In Ravi v. State of Kerala [2011 (3) KLT 353],
the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly -4- seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition.
9. Since the sample seal was not affixed on the copy
of the forwarding note, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Consequently, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of
hands in a tamper - proof condition. In the said circumstances, there is no link evidence to connect the appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below relying on Ext.P10 Certificate of Chemical Analysis, cannot be sustained. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the -5- court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. Needless to state that if the appellant had already deposited any amount before the court pursuant to the direction of this court, the appellant is entitled to reimbursement of the said amount from the court concerned. sd B. SUDHEENDRA KUMAR, JUDGE. dl/