Sivadasan vs State Of Kerala
2021 Latest Caselaw 9353 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.301 OF 2008

AGAINST THE ORDER/JUDGMENT IN SC 162/2003 DATED 25-01-2008 OF III
                ADDITIONAL SESSIONS JUDGE, KOLLAM


APPELLANT/S/ACCUSED:

             SIVADASAN
             S/O NARAYANA PANICKER,
             CHUDUKATTIL VEEDU, MANAPPALLY NORTH MURI,
             THAZHAVA VILLAGE,KOLLAM DISTRICT.

             BY ADV. SRI.PRATHEESH.P

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY EXCISE INSPECTOR,
             KARUNAGAPPALLY EXCISE RANGE,
             THROUGH 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.301 OF 2008

                           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

09.01.1999 at about 12.45 p.m., the appellant was

found in possession of 750 ml 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 forwarding note was produced or

marked in this case, the appellant is entitled to be

acquitted.

5. No forwarding note was produced or marked

in this case.

CRL.A.No.301 OF 2008

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 case under the Abkari Act could

succeed only if it is shown that the contraband liquor

which was allegedly seized from the accused ultimately CRL.A.No.301 OF 2008

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. Therefore, 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. Consequently, there is no

link evidence to connect the appellant with the sample

analysed in the laboratory. In the said circumstances,

the conviction and sentence passed by the court below

relying on Ext.P8 certificate of Chemical Analysis CRL.A.No.301 OF 2008

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.

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 reimbursement of the said amount from the court

concerned.

Sd/-

B.SUDHEENDRA KUMAR JUDGE RK/19.03.2021