Sadasivan Nair vs State Of Kerala
2021 Latest Caselaw 10210 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.2240 OF 2006

       SC 1307/2004 OF ADDITIONAL DISTRICT & SESSIONS
                  COURT(ADHOC)III, KOLLAM

    CP 150/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
                           KOLLAM


APPELLANT/S:

               SADASIVAN NAIR, S/O, SRIDHARAN NAIR,
               PALLITHOPPIL, SINGARAPPALLY, NENMENI,
               THEKKEMURI, MANTROTHURUTHU, KOLLAM.

               BY ADVS.
               SRI.JACOB SEBASTIAN
               SRI.P.B.ABOOBACKER
               SRI.MATHEW SUNNY
               SRI.PRADEEP JOY
               SRI.A.RASHID

RESPONDENT/S:

               STATE OF KERALA
               REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF
               KERALA, FOR SUB INSPECTOR OF POLICE,, EAST
               KALLADA POLICE STATION., (CRIME NO.114/02)


OTHER PRESENT:

               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:
 Case No. CRL.A.No.2240   OF 2006



                                   -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 21.6.2002 at about 5.30 p.m., the appellant and the other accused were found in possession of two 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 and 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.

Case No. CRL.A.No.2240 OF 2006

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 reached the hands of the chemical examiner by change of hands in a tamper proof condition.

8. Since no forwarding note was produced or marked Case No. CRL.A.No.2240 OF 2006

in this case, the prosecution could not establish the tamper

- proof despatch of the sample to the laboratory. In the said circumstances, 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, the conviction and sentence passed by the court below relying on Ext.P7 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, JUDGE.

dl/