Anandan vs State Of Kerala
2021 Latest Caselaw 8110 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.1829 OF 2006

SC 164/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM

   CP 140/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
                      KARUNAGAPPALLY


APPELLANT/S:

               ANANDAN
               S/O KESAVAN,KOTTEL VADAKKETHIL VEEDU, KODATHOOR
               MURI,THAZHAVA.

               BY ADV. SRI.K.ABDUL JAWAD

RESPONDENT/S:

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

      2        EXCISE INSPECTOR KARUNAGAPPALLY.


               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SMT. M. K. PUSHPALATHA,SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CASE NO. CRL.A.NO.1829 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 12.7.2004 at about 5.45 p.m., the appellant was found in possession of two 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 no forwarding note was marked and proved in this case, the appellant is entitled to be acquitted.

5. It appears that no forwarding note was marked and proved in this case. However, the copy of the forwarding note is available with the records transmitted to this court, which would show that the sample seal was not CASE NO. CRL.A.NO.1829 OF 2006

affixed on the said forwarding note at the space provided for the same.

6. In Krishnan H. v. State [2015(1) KHC 822], the Court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient to infer that the sample seal was not provided in the original Forwarding Note.

7. In this case, no evidence was adduced by the prosecution to indicate that the sample seal was affixed on the original forwarding note.

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 the sample seal was not affixed on the copy CASE NO. CRL.A.NO.1829 OF 2006

of the forwarding note, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, 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 the sample analysed in the laboratory. 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.

dl/