Kunjumon vs State Of Kerala
2021 Latest Caselaw 10375 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                      CRL.A.No.1801 OF 2006

   AGAINST THE ORDER/JUDGMENT IN SC 11/2002 DATED 29-08-2006 OF
         SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA

 AGAINST THE ORDER/JUDGMENT IN CP 142/1999 OF JUDICIAL MAGISTRATE
                   OF FIRST CLASS -III, PUNALUR


APPELLANT/ACCUSED:

             KUNJUMON
             S/O.PAPPACHAN,
             SABU BHAVAN, KOTTAVATTOM MURI,
             CHAKKUVARUCKAL VILLAGE, KOTTARAKARA.

             BY ADVS.
             SRI.M.V.THAMBAN
             SRI.K.V.ANIL KUMAR

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 26.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                             -2-

CRL.A.No.1801 OF 2006




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 55(a) and (i) of the Abkari

Act.

2. The prosecution allegation is that on

09.10.1999 at about 6 p.m., the appellant was found

in possession of 750 ml of arrack, in contravention of

the provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the appellant has

argued that since there is no evidence to prove the

drawing of the sample and sending the same to the

laboratory in a tamper-proof condition, the appellant is

entitled to be acquitted.

5. PW6 was the officer, who detected the

CRL.A.No.1801 OF 2006

offence and seized the contraband. The evidence of

PW6 would show that he seized the contraband as

such from the spot. Ext.P4 is the property list, which

would show that a bottle containing 750 ml of arrack

was produced before the court. Ext.P1 Mahazar would

show that 1 ½ litre bottle containing 750 ml of arrack

was seized and sealed at the spot. Ext.P5 is the

certificate of Chemical Analysis, which would show

that one sealed bottle containing 180 ml of sample

was received in the laboratory. This would show that

the sample was drawn from the contraband after the

production of the contraband before the court.

However, the Thondy Clerk of the court was not

examined before the court to prove the drawing of the

sample from the contraband.

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

KLT 720], the Court observed thus:

CRL.A.No.1801 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 the Thondy Clerk was not examined in

this case, the prosecution could not establish the

drawing of the sample and sending the same to the

CRL.A.No.1801 OF 2006

laboratory. No forwarding note was produced and

marked in this case. Therefore, the prosecution could

not establish tamper-proof despatch of the sample to

the laboratory. Thus, the prosecution could not

establish the drawing of the sample from the

contraband and sending the same to the laboratory in

a tamper-proof condition. 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. In the said

circumstances, there is no link evidence to connect the

appellant with the sample analysed in the laboratory.

Consequently, the conviction and sentence passed by

the court below relying on Ext.P5 certificate of

chemical analysis cannot be sustained.

CRL.A.No.1801 OF 2006

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 Nkr/26.03.2021