Omanakuttan vs State Of Kerala
2021 Latest Caselaw 9321 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                     CRL.A.No.2100 OF 2007

AGAINST THE ORDER/JUDGMENT IN SC 197/2002 DATED 11-10-2007 OF
          ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM


APPELLANT/ACCUSED:

            OMANAKUTTAN,
            S/O. NEELAKANTA PANICKER,
            VISHAKHBHAVAN, VADAKKUM MURI KIZHAKKU,
            THAZHAVA VILLAGE, KOLLAM DISTRICT.

            BY ADVS.
            SRI.SIJU KAMALASANAN
            SRI.PRATHEESH.P

RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY EXCISE INSPECTOR,
            KARUNAGAPPALLY EXCISE RANGE,
            THROUGH PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

            R1 BY SMT. M.K.PUSHPALATHA, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.NO.2100 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

10.06.1998 at about 8.15 p.m., the appellant was found

in possession of 375ml 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 Ext.P8

copy of the forwarding note, the appellant is entitled to be

acquitted.

5. The learned counsel for the appellant relied

on the decision of this Court in Krishnan H. v. State

[2015(1) KHC 822] to support his arguments. CRL.A.NO.2100 OF 2007

6. 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

Forwarding Note is sufficient to presume that the sample

seal was not provided in the original Forwarding Note.

7. Ext.P8 is the copy of the forwarding note

which does not contain the sample seal at the space

provided for the same or at any other place. In this case,

no evidence was adduced by the prosecution to prove

that the sample seal was affixed on the copy of the

forwarding note.

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 CRL.A.NO.2100 OF 2007

hands of the chemical examiner by change of hands in a

tamper proof condition.

9. 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.P7

Certificate of Chemical Analysis, cannot be sustained. CRL.A.NO.2100 OF 2007

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.

Nkr/19.03.2021