Ramachandran vs State Of Kerala
2021 Latest Caselaw 8355 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.1163 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 501/2001 OF ADDITIONAL
    SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),
                        KOTTARAKKARA


APPELLANT/S:

               RAMACHANDRAN,
               AGED 50 YEARS,
               S/O.SIVARAMAN, S.R.VILASAM, KUZHIYAMTHADOM,
               ALAYAMON MURI, ALAYAMAN VILLAGE.

               BY ADVS.
               SRI.GEORGE MATHEW
               SRI.A.V.TELLES

RESPONDENT/S:

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



OTHER PRESENT:

               SMT. M.K.PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.1163 of 2007


                                      -2-



                                JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

55(a) of the Abkari Act.

2. The prosecution allegation is

that on 30.12.1999 at about 4.45 p.m., the

appellant was found in possession of 490 ml

of zingiberies in two bottles 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 and marked in

this case, the appellant is entitled to Crl.Appeal No.1163 of 2007

be acquitted.

5. It appears that no forwarding

note was produced or marked in this case.

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 Crl.Appeal No.1163 of 2007

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 Crl.Appeal No.1163 of 2007

in a tamper-proof condition. In the said

circumstances, there is no link evidence to

connect the appellant with the sample anlaysed

in the laboratory. Consequently, the

conviction and sentence passed by the court

below on the basis of Ext.P5 certificate of

chemical analysis, cannot be sustained.

In the result, this 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 Crl.Appeal No.1163 of 2007

reimbursement of the said amount from the

court concerned.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK