Ani vs State of Kerala

ANI vs State of Kerala

Type Court Judgment Court Kerala Decided Jul 04, 2019

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Citation: sooperkanoon.com/1863418
Court: Kerala High Court
Judge: Honourable Mr. Justice B.Sudheendra Kumar
Decided On: Jul 04, 2019
Case Number: CRL.A/127/2007

Parties & Advocates

Appellant / Petitioner

ANI

Respondent

State of Kerala

Excerpt

.....prosecutor, sri.r.harikrishnan,amicus curiae this criminal appeal having been finally heard on 04.07.2019, the court on the same day passed the following: -2-judgmentthe appellant was convicted and sentenced by the court below under section 55(a) of the abkari act.2. the prosecution allegation is that on 30.09.1999 at about 5.30 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 theappellant, this court has appointed adv.r.harikrishnan as amicus curiae to argue the case for the appellant. heard the learned amicus curiae and the learned public prosecutor.4. it has been argued by the learned amicus curiae that since no sample seal was affixed on the copy of the forwarding note, the appellant is entitled to benefit of doubt. -3-5. ext.p7 is the forwarding note, which wouldshow that no sample seal was seen affixed on it. in krishnan h. vs. state of kerala [2015 (1) khc 822], this court held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided on the original forwarding note. in this case, no sample seal is seen affixed on ext.p7 copy of the forwarding note. no evidence was adduced by the prosecution to show that the sample seal was affixed on the original forwarding note. since there is no evidence with regard to the affixture of the sample seal on the original of the forwarding note, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. consequently, there cannot be any guarantee that the sample produced before the-4- court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant. therefore, there is no link evidence connecting the appellant with the sample analysed in the laboratory. consequently, the conviction and.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941 AGAINST THE ORDER/JUDGMENT IN SC 897/2004 of ADDITIONAL SESSIONS COURT(ADHOC)III, KOLLAM AGAINST THE ORDER/JUDGMENT IN CP 52/2003 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM APPELLANT/ACCUSED: ANI S/O PODIYAN, RESIDING AT KALIYILAZHIKATHU KIZHAKKETHODIYIL, THEKKEVILA, CHERRI, MUNDAKKAL VILLAGE, KOLLAM KNOWN AS, SUNIL KUMAR, S/O.GOPALAKRISHNAN, RESIDING AT PUTHEN, NADA KALEELIL KIZHAKATHIL OF THEKKEVILA CHERRI,, MUNDAKKAL VILLAGE, KOLLAM TALUK. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT/COMPLAINANT: STATE OF KERALA THE EXCISE INSPECTOR, KOLLAM EXCISE RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.E.C.BINEESH,PUBLIC PROSECUTOR, SRI.R.HARIKRISHNAN,AMICUS CURIAE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -2-

JUDGMENT

The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

2. The prosecution allegation is that on 30.09.1999 at about 5.30 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.R.Harikrishnan as Amicus Curiae to argue the case for the appellant. Heard the learned Amicus Curiae and the learned Public Prosecutor.

4. It has been argued by the learned Amicus Curiae that since no sample seal was affixed on the copy of the forwarding note, the appellant is entitled to benefit of doubt. -3-

5. Ext.P7 is the forwarding note, which would

show that no sample seal was seen affixed on it. In Krishnan H. vs. State of Kerala [2015 (1) KHC 822], this Court held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided on the original forwarding note. In this case, no sample seal is seen affixed on Ext.P7 copy of the forwarding note. No evidence was adduced by the prosecution to show that the sample seal was affixed on the original forwarding note. Since there is no evidence with regard to the affixture of the sample seal on the original of the forwarding note, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Consequently, there cannot be any guarantee that the sample produced before the

-4- court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant. Therefore, 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, relying on Ext.P8 certificate of Chemical Analysis, cannot be sustained and consequently, I set aside the same. 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. Sd/- B.SUDHEENDRA KUMAR JUDGE Nkr/04.07.19

Same Court & Year Kerala · 2019 Same Parties ANI vs State of Kerala Same Judge Honourable Mr. Justice B.Sudheendra Kumar