Lukose vs State Of Kerala
2021 Latest Caselaw 8389 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.2369 OF 2007

  SC 73/2003     OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA


APPELLANT:

             LUKOSE, S/O. CHACKO,
             AGED 81 YEARS
             AMBALAKKARA MURI, VALAKOM VILLAGE,
             KOTTARAKKARA.

             BY ADV. SRI.K.V.ANIL KUMAR

RESPONDENT/S:

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

             R1 BY PUBLIC PROSECUTOR

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:
 Case No. CRL.A.No.2369   OF 2007

                                      -2-


                                   JUDGMENT

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

2. The prosecution allegation is that on 4.12.2000 at about 6.30 p.m., the appellant was found in possession of 3.60 litres of Indian made foreign liquor, 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.

6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:

"Without the link evidence of actual Case No. CRL.A.No.2369 OF 2007

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 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 samples to the laboratory. In the said circumstances, there is no satisfactory link evidence to Case No. CRL.A.No.2369 OF 2007

show that the same samples which were 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 connecting the appellant with the samples analysed 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 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/