Vijayan vs State Of Kerala
2021 Latest Caselaw 8107 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.1234 OF 2007

AGAINST THE ORDER/JUDGMENT IN SC 362/2002 DATED 14-06-2007
   OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA


APPELLANT/ACCUSED:

           VIJAYAN
           S/O.KUTTAN NAIR
           DHANYA NIVASIL, KADAKKAL MURI,
           KADAKKAL VILLAGE.

           BY ADV. SRI.R.BINDU (SASTHAMANGALAM)

RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY 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.1234 OF 2007

                            -2-




                        JUDGMENT

The appellant was convicted and sentenced by

the courts below under Sections 55(a) and (i) of the

Abkari Act.

2. The prosecution allegation is that on

01.03.1999 at about 12 Night, the appellant was

found in possession of 450 ml 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. CRL.A.No.1234 OF 2007

6. 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."

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. CRL.A.No.1234 OF 2007

8. 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. 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 the sample

analysed in the laboratory. In the said circumstances,

the conviction and sentence passed by the court below

relying on Ext.P5 certificate of chemical analysis

cannot be sustained.

In the result, this criminal appeal stands

allowed, setting aside the conviction and sentence CRL.A.No.1234 OF 2007

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