Udayabhanu Alias Aniyan vs State Of Kerala
2021 Latest Caselaw 7974 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.2193 OF 2006

   AGAINST THE ORDER/JUDGMENT IN SC 49/2004 DATED 16-10-2006 OF
        ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA

 AGAINST THE ORDER/JUDGMENT IN CP 162/2001 OF JUDICIAL MAGISTRATE
                OF FIRST CLASS -II,PATHANAMTHITTA


APPELLANT/S:

               UDAYABHANU ALIAS ANIYAN
               S/O. PODIYAN, KANAKAKUNNIL PADINJATTETHIL VEEDU,
               MUTTAKKUZHI, ARUVAPPULAM MURI, ARUVAPPULAM VILLAGE,
               PATHANAMTHITTA.

               BY ADVS.
               SRI.P.GOPAKUMARAN NAIR
               SRI.AJITH MURALI

RESPONDENT/S/COMPLAINANT:

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


               SMT. M.K.PUSHPALATHA, SR.PP,
               SRI. K.I. SAGEER, 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.2193 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

03.10.2001 at about 5.40 p.m., the appellant was found

in possession of 2 litres of arrack in contravention of

the provisions of the Abkari Act.

3. Since there is no representation for the

appellant, this court has appointed Adv. K.I.Sageer as

Amicus Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the

learned Public Prosecutor.

CRL.A.No.2193 OF 2006

5. The learned Amicus Curiae has argued that

since no forwarding note was produced or marked in

this case, the appellant is entitled to be acquitted.

6. It appears that no forwarding note was

produced or marked in this case.

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".

CRL.A.No.2193 OF 2006

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

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 CRL.A.No.2193 OF 2006

hands in a tamper-proof condition. In the said

circumstances, there is no link evidence to connect the

appellant with Ext.P4 certificate of Chemical Analysis.

Consequently, the conviction and sentence passed by

the court below relying on Ext.P4 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 RK/08.03.2021