Janardhanan vs State Of Kerala
2021 Latest Caselaw 8354 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                       CRL.A.No.1999 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 387/2002 DATED 11-10-2007 OF
    ADDITIONAL SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA


APPELLANT/S/ACCUSED:

             JANARDHANAN, S/O. CHINNAN,
             CHARUVILA PUTHEN VEEDU,
             CHITHARAMURI AND VILLAGE.

             BY ADV. SRI.SAJU.S.A

RESPONDENT/S/COMPLAINANT:

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



             SMT. M.K.PUSHPALATHA, SR.PP, SRI. THAREEQ ANVER,
             AMICUS CURIAE.

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1999 OF 2007

                                 2

                             JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 8(2) and 55(a) of the

Abkari Act.

2. The prosecution allegation is that on

19.11.2000 at about 4.15 p.m., the appellant was found

in possession of 2 litres of arrack in contravention of

the provisions of the Abkari Act.

3. It has been submitted at the bar that the

learned Advocate, who filed the Crl.Appeal passed

away, two years ago. However, no alternative

arrangement has been made by the appellant. In the

said circumstances, this Court has appointed

Adv. Thariq Anver. K. as Amicus Curiae to argue the

case for the appellant.

CRL.A.No.1999 OF 2007

4. Heard the learned Amicus Curiae and the

learned senior Public Prosecutor.

5. The learned Amicus Curiae has submitted

that since no forwarding note was produced or marked

in this case, the appellant is entitled to be acquitted.

6. It appears that no forwarding note was

produced or marked in this case.

7. 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 CRL.A.No.1999 OF 2007

brought home the offence against the appellant".

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 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. Therefore, there is no

satisfactory link evidence to show that it was the same

sample which was drawn from the contraband CRL.A.No.1999 OF 2007

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
RK/12.03.2021