Binu vs State Of Kerala
2021 Latest Caselaw 10002 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                       CRL.A.No.1815 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 322/2005 DATED 14-09-2007 OF
        ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA


APPELLANT/S/ACCUSED:

             BINU,
             S/O. KUTTAPPAN,
             CHIVATTUTHARA, KANJIPPADAM P.O., ALAPPUZHA.

             BY ADVS.
             SRI.E.RAFEEK
             SRI.GOKUL DAS V.V.H.
             SRI.M.P.MADHAVANKUTTY

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REP. BY EXCUSE INSPECTOR, THROUGH THE PUBLIC
             PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.


             SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1815 OF 2007

                           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

13.08.2002 at about 05.50 p.m., the appellant was

found in possession of 2 litres of arrack in

contravention of the provisions of the Abkari Act.

3. Heard.

4. The learned Counsel for the appellant has

argued that since no forwarding note was produced or

marked in this case, the appellant is entitled to be

acquitted.

5. It appears that no forwarding note was

produced or marked in this case.

CRL.A.No.1815 OF 2007

6. 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".

7. 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 CRL.A.No.1815 OF 2007

reached the hands of the chemical examiner by change

of hands in a tamper-proof condition.

8. Since no forwarding note was produced

and marked in this case, the prosecution could

not establish the tamper-proof despatch of the

samples to the laboratory. Therefore, there is no

satisfactory link evidence to show that the same

samples which were 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

samples analysed in the laboratory. In the said

circumstances, the conviction and sentence passed by

the court below relying on Ext.P4 certificate of CRL.A.No.1815 OF 2007

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.

SD/-

B.SUDHEENDRA KUMAR JUDGE RK/24.03.2021