Vasu @ Vasudevan vs State Of Kerala
2021 Latest Caselaw 10379 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.1330 OF 2008

 AGAINST THE ORDER/JUDGMENT IN SC 605/2007 DATED 03-06-3008
     OF ADDITIONAL SESSIONS COURT (ADHOC-I), THRISSUR


APPELLANT/S:

               VASU @ VASUDEVAN,
               S/O.CHAMI, ORRAMBATHUPADI HOUSE,
               KAIKALAMPARAKUNNU DESOM, PULAKODE VILLAGE,
               THALAPPILLY TALUK.

               BY ADVS.
               SRI.C.A.CHACKO
               SMT.C.M.CHARISMA
               SRI.N.A.SHAFEEK

RESPONDENT/S:

               STATE OF KERALA,
               REPRESENTED BY THE EXCISE INSPECTOR,
               PZAHAYANNUR, THROUGH THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM.



OTHER PRESENT:

               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.Appeal No.1330 of 2008


                                   -2-



                                JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

58 of the Abkari Act.

2. The prosecution allegation is

that on 5.05.2004 at about 6.00 p.m., the

appellant was found in possession of five

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.

Crl.Appeal No.1330 of 2008

5. It appears that no forwarding

note was 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 Crl.Appeal No.1330 of 2008

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 and marked 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. Therefore, there Crl.Appeal No.1330 of 2008

is no link evidence to connect the appellant

with the sample anlaysed in the laboratory.

Consequently, the conviction and sentence

passed by the court below relying on Ext.P6

certificate of chemical analysis, cannot be

sustained.

In the result, this 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 STK