Podichi @ Kunjikutty vs State Of Kerala
2021 Latest Caselaw 10376 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.1777 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 769/2001 DATED 24-08-2006 OF
             ADDITIONAL SESSIONS COURT, KOTTARAKKARA

 AGAINST THE ORDER/JUDGMENT IN CP 118/2000 OF JUDICIAL MAGISTRATE
                  OF FIRST CLASS -I,KOTTARAKKARA


APPELLANT/S/ACCUSED:

             PODICHI @ KUNJIKUTTY
             D/O.LEKSHMI, MADANKAVU VILA VEEDU,
             KARUVELIL MURI, EZHUKONE VILLAGE,
             KOTTARAKKARA.

             BY ADV. SRI.K.V.ANIL KUMAR

RESPONDENT/S/COMPLAINANT:

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


             SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1777 OF 2006

                            2




                        JUDGMENT

The appellant was convicted and sentenced by the

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

Abkari Act.

2. The prosecution allegation is that on

07.09.1998 at about 6.30 p.m., the appellant was found

in possession of 1 litre 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 CRL.A.No.1777 OF 2006

produced or marked in this case.

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 CRL.A.No.1777 OF 2006

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

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 CRL.A.No.1777 OF 2006

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 RK/26.03.2021