Dharmarajan vs State Of Kerala
2021 Latest Caselaw 8118 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.1253 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC 416/2001 DATED 18-05-2006
    OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA

    AGAINST THE ORDER/JUDGMENT IN CP 14/2000 OF JUDICIAL
          MAGISTRATE OF FIRST CLASS -III, PUNALUR


APPELLANT/S:

               DHARMARAJAN,
               S/O DIVAKARAN,CHARUVILE PUTHEN VEEDU, PONGODU,
               KAMUKINCHERRY MURI,, PIDAVOOR VILLAGE,
               PATHANAMTHITTA TALUK,, KOLLAM DISTRICT.

               BY ADVS.
               SRI.R.SURAJ KUMAR
               SRI.R.SURAJ KUMAR

RESPONDENT/S:

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


OTHER PRESENT:

               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.1253 OF 2006                                -2-




                         JUDGMENT

The appellant was convicted and sentenced by the court below under Section 55(a) and (i) of the Abkari Act.

2. The prosecution allegation is that on 3-11-1999 at about 5.50 p.m., the appellant was found in possession of 1 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:-

"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. The Division Bench in Ravi v. State of Kerala [2011 (3) KLT 353] 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 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 connecting 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 passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

Sd/-B.Sudheendra Kumar, Judge.

ani/9/3/2021

/true copy/