Udayakumar @ Kochukunju vs State Of Kerala
2021 Latest Caselaw 8398 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.2190 OF 2007

 AGAINST THE ORDER/JUDGMENT IN SC 457/2006 DATED 18-10-2007
       OF ADDITIONAL SESSIONS COURT(ADHOC)III, KOLLAM


APPELLANT/ACCUSED:

            UDAYAKUMAR @ KOCHUKUNJU,
            LALITHA BHAVANAM, PORUVAZHY VILLAGE,,
            KUNNATHOOR TALUK, KOLLAM DISTRICT.

            BY ADV. SRI.B.MOHANLAL


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY THE EXCISE RANGE INSPECTOR,,
            SASTHAMKOTTA, KOLLAM DISTRICT THROUGH
            THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,ERNAKULAM.

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


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.NO.2190 OF 2007

                                 -2-




                           JUDGMENT

The appellant was convicted and sentenced by

the court below under Section 8(2) of the Abkari Act.

2. The prosecution allegation is that on

10.03.2003 at about 10.50 a.m., the appellant was

found in possession of three litres 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 sample seal was affixed on the

copy of the forwarding note, the appellant is entitled to

be acquitted.

5. In Krishnan H. v. State [2015(1) KHC

822], the Court held that the absence of sample seal at

the space provided for the same in the copy of the CRL.A.NO.2190 OF 2007

Forwarding Note is sufficient to infer that the sample

seal was not provided in the original Forwarding Note.

6. Ext.P7 is the copy of the forwarding note which

does not contain the sample seal at the space provided

for the same. No evidence was also adduced by the

prosecution to prove that the sample seal was affixed on

the original forwarding note. Therefore, it has to be held

that the prosecution could not establish the tamper-

proof despatch of the sample to the laboratory.

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.

CRL.A.NO.2190 OF 2007

8. Since the sample seal was not affixed on the

copy of the forwarding note, 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. 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.P8 Certificate of Chemical Analysis,

cannot be sustained.

In the result, this Criminal Appeal stands

allowed, setting aside the conviction and sentence CRL.A.NO.2190 OF 2007

passed by the court below and the appellant stands

acquitted. The bail bond of the appellant stands

discharged.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE.

Nkr/12.03.2021