Varghese vs State Of Kerala
2021 Latest Caselaw 7799 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                      CRL.A.No.1868 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 685/2001 DATED 18-08-2006 OF
    ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA

 AGAINST THE ORDER/JUDGMENT IN CP 320/2000 OF JUDICIAL MAGISTRATE
                 OF FIRST CLASS -II,NEYYATTINKARA


APPELLANT/ACCUSED:

             VARGHESE
             S/O.CHELLAYYAN NADAR, SAJAY BHAVAN,
             CHENGAL VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.SASTHAMANGALAM S. AJITHKUMAR
             SRI.RENJITH B.MARAR

RESPONDENT/STATE:

             STATE OF KERALA
             REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SMT.M.K.PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1868 OF 2006

                           -2-




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 58 of the Abkari Act.

2. The prosecution allegation is that on

28.06.1999 about 11 a.m., the appellant was found in

possession of 2 litres of arrack, in contravention of the

provisions of the Abakari 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. In Sasidharan v. State of Kerala [2007 (1) KLT

720], the Court observed thus:

CRL.A.No.1868 OF 2006

"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."

6. 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.

7. It appears that no forwarding note was marked

and proved in this case. Therefore, the prosecution

could not establish the tamper-proof despatch of the

sample to the laboratory. Consequently, there is no CRL.A.No.1868 OF 2006

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 to connect the appellant with

Ext.P6 certificate of chemical analysis. Consequently,

the conviction and sentence passed by the court below

relying on Ext.P6 certificate of chemical analysis cannot

be sustained. In the said circumstances, the appellant

is entitled to be acquitted.

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. CRL.A.No.1868 OF 2006

Needless to state that if the appellant had already

deposited any amount before the trial court pursuant to

the direction of this Court, the appellant is entitled to

reimbursement of the said amount from the court

concerned.

Sd/-

B.SUDHEENDRA KUMAR

JUDGE Nkr/05.03.2021