Rajeev vs State Of Kerala
2021 Latest Caselaw 10378 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.1593 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 664/2001 OF SPECIAL COURT FOR
                  ABKARI ACT CASES, KOTTARAKKARA


APPELLANT/ACCUSED:

             RAJEEV
             AGED 35 YEARS
             S/O.ARAVINDAKSHAN, PANAYIL VEEDU,
             IDAYAM MURI, ARACKAL VILLAGE.

             BY ADV. SRI.S.MUHAMMED HANEEFF
             SMT. SEETHA.S, AMICUS CURIAE

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY INSPECTOR OF EXCISE,
             CHADAYAMANGALAM EXCISE RANGE (CRIME NO. 54/1999),
             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:
 CRL.A.No.1593 OF 2006
                            -2-




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 55(a) and 8(2) of the

Abkari Act.

2. The prosecution allegation is that on

03.08.1999 at about 5.15 p.m., the appellant was

found in possession of 4 liters of arrack, in

contravention of the provisions of the Abkari Act.

3. Since there is no representation for the

appellant, this Court has appointed Adv.Seetha S, as

Amicus Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the

learned Senior Public Prosecutor.

5. It has been argued by the learned Amicus

Curiae that since no forwarding note was produced and

marked in this case, the appellant is entitled to be CRL.A.No.1593 OF 2006

acquitted.

6. It appears that no forwarding note was

produced and marked in this case.

7. 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".

8. 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 CRL.A.No.1593 OF 2006

of hands in a tamper-proof condition.

9. 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 connecting 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 CRL.A.No.1593 OF 2006

the court below and the appellant stands acquitted.

The bail bond of the appellant stands discharged.

Sd/-

B.SUDHEENDRA KUMAR Nkr/26.03.2021 JUDGE