Sundaresan vs State Of Kerala
2021 Latest Caselaw 7669 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.988 OF 2007

  SC 1180/2004 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA


APPELLANT/S:

               SUNDARESAN, S/O. NANARAYANA PILLAI,
               MANGALATHU VEEDU, PUNNALA MURI, PUNNALA
               VILLAGE, KOLLAM DISTRICT.

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

RESPONDENT/S:

               STATE OF KERALA
               REP. BY 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:
 Case No. Crl.A 988/2007



                                    -2-




                               JUDGMENT

The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

2. The prosecution allegation is that on 13.11.2000 at about 5.45 p.m., the appellant was found in possession of about 15 litres of arrack for the purpose of sale, 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 marked and proved in this case, the appellant is entitled to benefit of doubt.

5. It appears that no forwarding note was marked and proved in this case.

6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:

Case No. Crl.A 988/2007

"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 no forwarding note was marked and proved in this case, the prosecution could not establish the tamper

- proof despatch of the sample to the laboratory. In the Case No. Crl.A 988/2007

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. In the said circumstances, there is no link evidence connecting the appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below on the basis of 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.

dl/