Santhan vs State Of Kerala
2021 Latest Caselaw 10215 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.197 OF 2012

 AGAINST THE ORDER/JUDGMENT IN SC 250/2009 OF ADDITIONAL DISTRICT
                  COURT (ADHOC), PATHANAMTHITTA


APPELLANT/S/ACCUSED:

                SANTHAN
                S/O. VASU, MANGALATHUVADAKKATHIL,
                KURAMPALA THEKKU, ADOOR.

                BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

RESPONDENT/S:

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

      2         EXCISE INSPECTOR
                ADOOR EXCISE RANGE, ADOOR.


                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:
 CRL.A.No.197 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

13.01.2003 at about 6.00 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.197 OF 2012

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.197 OF 2012

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

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.P4 certificate of Chemical Analysis CRL.A.No.197 OF 2012

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