Nelson vs State Of Kerala
2021 Latest Caselaw 10209 Ker

             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

                      CRL.A.No.2395 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 872/2001 DATED 26-10-2006 OF
    ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA

 AGAINST THE ORDER/JUDGMENT IN CP 340/2000 OF JUDICIAL MAGISTRATE
                 OF FIRST CLASS -II,NEYYATTINKARA


APPELLANT/ACCUSED:

             NELSON
             S/O BHAGYANATHAN,
             PARUTHIVILA PUTHEN VEEDU, DHANUVACHAPURAM,
             MEKOLLA DESOM, KOLLAYIL VILLAGE,
             NEYYATTINKARA.

             BY ADV. SRI.G.SUDHEER

RESPONDENT/COMPLAINANT:

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

             R1 BY SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2395 OF 2006
                           -2-




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 58 of the Abkari Act.

2. The prosecution allegation is that on

17.04.1999 at about 8 p.m., the appellant was found in

possession of 5 liters 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 and

marked in this case, the appellant is entitled to be

acquitted.

5. It appears that no forwarding note was

produced and marked in this case.

6. In Sasidharan v. State of Kerala [2007 (1) KLT

720], the Court observed thus:

CRL.A.No.2395 OF 2006

"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

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

sample to the laboratory. Therefore, there is no CRL.A.No.2395 OF 2006

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

on the basis of 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.

Sd/-

B.SUDHEENDRA KUMAR Nkr/25.03.2021 JUDGE