Mohanan vs State Of Kerala
2021 Latest Caselaw 10006 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.113 OF 2012

   AGAINST THE ORDER/JUDGMENT IN SC 355/2009 DATED 21-12-2011 OF
       ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA


APPELLANT/S/1st ACCUSED:

             MOHANAN
             S/O.KAMALASANAN, PALAKKOTTUPUTHEN VEEDU,
             MELOODU, PERINGANADU VILLAGE, ADOOR TALUK,
             PATHANAMTHITTA DISTRICT.

             BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
             SRI.ARUN BOSE, AMICUS CURIAE.

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.

             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.113 OF 2012

                            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

01.07.2004 at about 6.30 p.m., the appellant was found

in possession of 1.750 litres of arrack and the other

accused was found in possession of 4 litres of rectified

spirit in contravention of the provisions of the Abkari

Act.

3. Since there is no representation for the

appellant, this Court has appointed Adv. Arun Bose as

Amicus Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the CRL.A.No.113 OF 2012

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 CRL.A.No.113 OF 2012

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

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 CRL.A.No.113 OF 2012

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

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 CRL.A.No.113 OF 2012

to reimbursement of the said amount from the court

concerned.

SD/-

B.SUDHEENDRA KUMAR JUDGE RK/24.03.2021