Bhadran vs State, - Court Judgment

SooperKanoon Citationsooperkanoon.com/1607008
CourtKerala High Court
Decided OnMar-25-2021
Case NumberCRL.A/1081/2006
JudgeHonourable Mr. Justice B.Sudheendra Kumar
AppellantBhadran
RespondentSTATE,
Excerpt:
in the high court of kerala at ernakulampresent the honourable mr. justice b.sudheendra kumar thursday, the 25th day of march 2021 / 4th chaithra, 1943 against the order/judgment in sc 680/2003 of additional district court (adhoc), pathanamthitta against the order/judgment in cp 104/2003 of judicial magistrate of first class, ranni appellant/s/accused: bhadran s/o.kunjuraman, puthen veettil, puthusserimala,, vazhamuttom muri, ranny. by adv. sri.alexander peter sri. c. rajendran, amicus curiae. respondent/s/complainant: state, represented by excise inspector, ranny, crime and o.r.no.22/2000) through public prosecutor, high court of kerala, ernakulam. smt. m. k. pushpalatha.sr.pp, this criminal appeal having been finally heard on 25.03.2021, the court on the same day delivered the following:judgmentthe appellant was convicted and sentenced by the court below under section 8(2) of the abkari act.2. the prosecution allegation is that on 14.09.2000 at about 10.00 a.m., the appellant was found in possession of 3 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. c.rajendran as 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 produced or marked in this case, the appellant is entitled to be acquitted.6. it appears that no forwarding note was produced or marked in this case.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 couldsucceed 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.9. since no forwarding note was producedand marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. therefore, 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. consequently, there is no link evidence to connect the appellant with the sample analysed in the laboratory. in the said circumstances,the conviction and sentence passed by the court below relying on ext.p6 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. needless to state that if the appellant had already deposited any amount before the trial 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 rk/25.03.2021
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943 AGAINST THE ORDER/JUDGMENT IN SC 680/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA AGAINST THE ORDER/JUDGMENT IN CP 104/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RANNI APPELLANT/S/ACCUSED: BHADRAN S/O.KUNJURAMAN, PUTHEN VEETTIL, PUTHUSSERIMALA,, VAZHAMUTTOM MURI, RANNY. BY ADV. SRI.ALEXANDER PETER SRI. C. RAJENDRAN, AMICUS CURIAE. RESPONDENT/S/COMPLAINANT: STATE, REPRESENTED BY EXCISE INSPECTOR, RANNY, CRIME AND O.R.NO.22/2000) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT. M. K. PUSHPALATHA.SR.PP, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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 14.09.2000 at about 10.00 a.m., the appellant was found in possession of 3 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. C.Rajendran as 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 produced or marked in this case, the appellant is entitled to be acquitted.

6. It appears that no forwarding note was produced or marked in this case.

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.

9. Since no forwarding note was produced

and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Therefore, 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. Consequently, there is no link evidence to connect the appellant with the sample analysed in the laboratory. In the said circumstances,

the conviction and sentence passed by the court below relying on Ext.P6 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. Needless to state that if the appellant had already deposited any amount before the trial 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 RK/25.03.2021