Rajan vs State Of Kerala
2021 Latest Caselaw 7975 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.2169 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 335/2001 DATED 21-10-2006 OF
            ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM

 AGAINST THE ORDER/JUDGMENT IN CP 124/2000 OF JUDICIAL MAGISTRATE
                OF FIRST CLASS - I, KARUNAGAPPALLY


APPELLANT/ACCUSED:

             RAJAN, S/O.THANKAPPAN,
             KANJIRATHINAL KIZHAKKATHIL VEEDU,
             VADAKKUM MURI, THAZHAVA VILLAGE,
             KOLLAM DISTRICT.

             BY ADV. SRI.B.MOHANLAL

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE EXCISE INSPECTOR,
             KARUNAGAPPALLY EXCISE RANGE,
             KOLLAM DISTRICT,
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

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

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2169 OF 2006
                           -2-


                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 55(i) of the Abkari Act.

2. The prosecution allegation is that on

05.02.1998 about 11.30 a.m., the appellant was found

in possession of one litre 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 or

marked in this case, the appellant is entitled to be

acquitted.

5. It appears that no forwarding note was

produced or marked in this case before the court.

6. In Sasidharan v. State of Kerala [2007 (1) KLT

720], the Court observed thus:

CRL.A.No.2169 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."

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 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 CRL.A.No.2169 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. Consequently, there is no link

evidence to connect the appellant with Ext.P7

certificate of chemical analysis. In the said

circumstances, the conviction and sentence passed by

the court below relying on 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 Nkr/08.03.2021