Prakash @ Mannenna Prakash vs State Of Kerala
2021 Latest Caselaw 8104 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                         CRL.A.No.1825 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 1097/2003 DATED 29-08-2006 OF
           ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM

AGAINST THE ORDER/JUDGMENT IN CP 67/2001 OF JUDICIAL MAGISTRATE OF
                      FIRST CLASS , PARAVOOR


APPELLANT/1ST ACCUSED:

             PRAKASH @ MANNENNA PRAKASH
             S/O SOMAN,VIJAYA BHAVANAM,
             KAITHAKUZHI CHERI,
             ADICHANALLOOR VILLAGE.

             BY ADV. SRI.C.RAJENDRAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REP.BY SUB INSPECTOR OF POLICE,
             CHATHANNOOR POLICE, STATION,
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

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

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1825 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

20.05.2000 at about 6 p.m., the appellant was found in

possession of 3 litres of arrack, in contravention of the

provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the appellant has

argued that since there was long and unexplained delay

in producing the contraband and the samples before

the court, the appellant is entitled to be acquitted.

5. It has been further argued by the learned

counsel for the appellant that since no forwarding note

was produced and marked in this case, the appellant is CRL.A.No.1825 OF 2006

entitled to be acquitted on that ground as well.

6. It appears that the seizure was effected on

20.05.2000. However, the contraband and the samples

were produced before the court only on 26.06.2000. PW3

produced the contraband and the samples before the court.

No explanation was given by PW3 for the delay in producing

the contraband and the samples before the court. There is

also no evidence with regard to the safe custody of the

contraband and the samples till their production before the

court. Since there was long and unexplained delay from

20.05.2000 to 20.06.2000 in producing the contraband and

the samples before the court, there cannot be any

guarantee that the sample analysed in the laboratory was

the sample drawn from the contraband seized from the

appellant, particularly when there is no evidence with

regard to the safe custody of the samples till their

production before the court. In the said circumstances, the

appellant is entitled to be acquitted. CRL.A.No.1825 OF 2006

7. It appears that no forwarding note was

produced or marked in this case.

8. 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."

9. 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 CRL.A.No.1825 OF 2006

of hands in a tamper-proof condition.

10. Since no forwarding note was produced and

marked before the court, the prosecution could not

establish the tamper-proof despatch of the sample to

the laboratory. Consequently, 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 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 said circumstances also, the

appellant is entitled to be acquitted. CRL.A.No.1825 OF 2006

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/09.03.2021