Kannan vs State Of Kerala
2021 Latest Caselaw 7668 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                      CRL.A.No.2231 OF 2007

 AGAINST THE ORDER/JUDGMENT IN SC 674/2001 DATED 27-10-2007
   OF ADDL. SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT
                    CASES), KOTTARAKKARA

   AGAINST THE ORDER/JUDGMENT IN CP 119/2000 OF JUDICIAL
        MAGISTRATE OF FIRST CLASS -II, KOTTARAKKARA


APPELLANT/S:

               KANNAN, S/O. SANKARANARAYANAN,
               SHIJA BHAVAN,IHDP COLONY, MARAVANKODU,
               KIZHAKKEKARAMURI, VELIYAM VILLAGE.

               BY ADVS.
               SRI.S.BIJU (KIZHAKKANELA)
               SRI.JOHNSON GOMEZ

RESPONDENT/S:

               STATE OF KERALA,
               REP. BY THE SUB INSPECTOR OF POLICE,
               POOYAPPALLY, THROUGH PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA,ERNAKULAM.



OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.2231 of 2007


                                 -2-



                              JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

55(a) of the Abkari Act.

2. The prosecution allegation is

that on 23.06.1999 at about 7.30 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 no

forwarding note was produced and marked in

this case, the appellant is entitled to

benefit of doubt.

Crl.Appeal No.2231 of 2007

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.2231 of 2007

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 Crl.Appeal No.2231 of 2007

in a tamper-proof condition. Consequently,

there is no link evidence connecting the

appellant with Ext.P5 certificate of chemical

analysis. In the said circumstances, the

conviction and sentence passed by the court

below, relying on Ext.P5 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