Bichamon @ Nelson vs State Of Kerala
2021 Latest Caselaw 8119 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.1193 OF 2006

     AGAINST THE ORDER/JUDGMENT IN SC 2125/2002 OF III
             ADDITIONAL SESSIONS COURT,KOLLAM

    AGAINST THE ORDER/JUDGMENT IN CP 42/2001 OF JUDICIAL
            MAGISTRATE OF FIRST CLASS -I, KOLLAM


APPELLANT/S:

               BICHAMON @ NELSON
               S/O JILARIOUS,CHENAPPARAMBIL VEEDU, PRAYAN
               CHERRY EASTERN SIDE OF THE PADAPPAKARA CHURCH,
               MULAVANA VILLAGE.

               BY ADV. SRI.C.RAJENDRAN

RESPONDENT/S:

               STATE OF KERALA
               REP.BY THE S.I. OF POLICE, KUNDARA POLICE
               STATION,, THROUGH PUBLIC PROSECUTOR,, HIGH
               COURT OF KERALA, ERNAKULAM.

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


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.No.1193 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 25-12-2000 at about 12.15 p.m., the appellant was found in possession of 7 litres of arrack for the purpose of sale, 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 CRL.A.No.1193 OF 2006

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 or 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 CRL.A.No.1193 OF 2006

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.

Needless to state that if the appellant had already deposited any amount before the trial court pursuant to the direction of this Court, the appellant is entitled to re-imbursement of the said amount from the court concerned.

Sd/-B.Sudheendra Kumar, Judge.

ani/9/3/2021