Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 11TH DAY OF DECEMBER 2020 / 20TH AGRAHAYANA, CRL.A.No.322 OF 2008 SC 348/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD APPELLANT/S: GOPALAN, AGED 61 YEARS VELAYANGATTIL HOUSE,THRIKKADEERI POST, OTTAPALAM TALUK. BY ADV. SRI.R.SREEHARI SR.PP, ADV.SRI.C.S. SUMESH, AMICUS CURIAE RESPONDENT/S: STATE OF KERALA PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM. OTHER PRESENT: SMT. M. K. PUSHPALATHA, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2020, 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 4.5.2003 at about 4.00 p.m., the appellant was found in possession of 1.5 litres 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. Sri.C. S. Sumesh 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 forwarding note was marked and proved in this case, the appellant is entitled to be acquitted.
6. It appears that no forwarding note was marked and proved in this case. -3-
7. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:
“Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.”
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 seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. -4-
9. Since no forwarding note was marked and proved
in this case, the prosecution could not establish the tamper - proof despatch of the sample to the laboratory. In the said circumstances, 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 connecting the
appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below on the basis of Ext.P7
Certificate of Chemical Analysis, cannot be sustained. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. -5- 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/ -6-
JUDGMENT
Dated this the 11th day of December 2020 Sd/- B.SUDHEENDRA KUMAR JUDGE