Sasi vs State Of Kerala
2021 Latest Caselaw 7963 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                      CRL.A.No.2136 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 1498/2001 DATED 26-10-2006 OF
         ADDITIONAL DISTRICT COURT (ADHOC)-IV, TRIVANDRUM


APPELLANT/ACCUSED:

             SASI, S/O. SUBRAMANIYAN PILLAI,
             MEKKUMKARA PUTHENVEEDU,
             KADAVUKUZHY,, KOTTAKKAKOM MURI,
             ARYANAD VILLAGE, NEDUMANGAD TALUK.

             BY ADV. SRI.SUMAN CHAKRAVARTHY

RESPONDENT/COMPLAINANT:

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

             SMT. M.K.PUSHPALATHA, SR.PUBLIC PROSECUTOR,
             SRI. R. GOPAN, AMICUS CURIAE

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2136 OF 2006

                            -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

10.12.2000 about 7 a.m., the appellant was found in

possession of 9 litres of arrack, in contravention of the

provisions of the Abakari Act.

3. It has been submitted at the Bar that the

learned counsel, who filed this criminal appeal, is

presently a Senior Public Prosecutor. However, no

alternative arrangement has been so far made.

Therefore, this Court has appointed Adv.R.Gopan as

Amicus Curiae to argue the case for the appellant.

4. Heard Sri.R.Gopan, the learned Amicus Curiae

and Smt. M.K.Pushpalatha, the learned Senior Public CRL.A.No.2136 OF 2006

Prosecutor.

5. The learned Amicus Curiae has argued that

since no forwarding note was produced or marked in

this case, the appellant is entitled to benefit of doubt.

6. It appears that no forwarding note was

produced or marked in this case before the court.

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 CRL.A.No.2136 OF 2006

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.

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

to connect the appellant with Ext.P6 certificate of

chemical analysis. In the said circumstances, the

conviction and sentence passed by the court below

relying on Ext.P6 certificate of chemical analysis cannot CRL.A.No.2136 OF 2006

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 Nkr/08.03.2021