Kerala High Court
Thulaseedharan vs State Of Kerala on 19 March, 2021
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.1459 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 374/2000 DATED 03-07-2007 OF
ADDITIONAL SESSIONS JUDGE (ABKARI ACT CASES) KOTTARAKKARA
APPELLANT/S/ACCUSED NO.2:
THULASEEDHARAN, S/O. RAGHAVAN,
SUDHEESH BHAVAN, ANDOOR PACHA, URUKKUNNU MURI,
THENMALA VILLAGE.
BY ADVS.
SRI.ALAN PAPALI
SRI.P.M.RAFIQ
RESPONDENT/S/COMPLAINANT:
STATE OF KERALA
SUB INSPECTOR OF POLICE, THENMALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT. M. K. PUSHPALATHA, SR.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1459 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 30.10.1997
at about 6.00 p.m., the appellant and the other accused
persons were found in possession of a total quantity of
6 litres of arrack 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 there was long and unexplained
delay in producing the contraband and the samples
before the court, the appellant is entitled to be
CRL.A.No.1459 OF 2007
acquitted. It has been further argued by the learned
Counsel for the appellant that since no forwarding note
was produced or marked in this case, the appellant is
entitled to be acquitted on that ground as well.
5. The incident in this case was on 30.10.1997.
Ext.P3 property list would show that the contraband
and the samples were produced before the court only
on 04.12.1997. PW4 was the Circle Inspector of Police,
who produced the contraband and the samples before
the court. PW4 stated that the contraband and the
samples were produced before the court only on
14.12.1997. However, no reason was stated by PW4
for the delay in producing the contraband and the
samples before the court.
6. The delay as such is not always fatal to
CRL.A.No.1459 OF 2007
the prosecution case. However, if there is unexplained
delay, the same is, no doubt, fatal to the prosecution
case. In this case, since there was long and unexplained
delay from 30.10.1997 to 04.12.1997 in producing the
contraband and the samples before the court, there
cannot be any guarantee that the samples produced
before the court and analysed in the laboratory were
the samples drawn from the contraband seized from
the appellant. Consequently, there is no satisfactory
link evidence to connect the appellant with the
samples analysed in the laboratory. In the said
circumstances, the appellant is entitled to be acquitted.
7. No forwarding note was produced and
marked in this case.
8. In Sasidharan v. State of Kerala [2007 (1) KLT
CRL.A.No.1459 OF 2007
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".
9. 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.1459 OF 2007
10. Since no forwarding note was marked and
proved in this case, the prosecution could not
establish the tamper-proof despatch of the samples
to the laboratory. Therefore, there is no satisfactory
link evidence to 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. Consequently, there is no link
evidence to connect the appellant with the samples
analysed in the laboratory. In the said circumstances
also, the appellant is entitled to be acquitted.
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
CRL.A.No.1459 OF 2007
bail bond of the appellant stands discharged.
Sd/-
B.SUDHEENDRA KUMAR
JUDGE
RK/19.03.2021
