Vijayan vs State Of Kerala
2021 Latest Caselaw 9519 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                      CRL.A.No.1329 OF 2007

 AGAINST THE ORDER/JUDGMENT IN SC 98/2006 DATED 23-06-2007
    OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA


APPELLANT/S:

               VIJAYAN, S/O. GOPALAN,
               MELEL HOUSE, THANKAMANI VILLAGE,
               IDINGAMALA KARA, KARIVELY CITY.

               BY ADVS.
               SRI.K.M.KURIAN
               SRI.P.VIJAYAKUMAR

RESPONDENT/S:

               STATE OF KERALA,
               REPRESENTED BY SUB INSPECTOR OF POLICE,
               KATTAPPANA REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM.



OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.1329 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 20.05.2003 at about 7.40 p.m., the

appellant was found in possession of 1.5

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. The learned counsel for the Crl.Appeal No.1329 of 2007

appellant relied on the decision of this

Court in Krishnan H. v. State [2015(1) KHC

822] to support his argument.

6. In Krishnan H. (supra), 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 affixed

on the original forwarding note.

7. In this case, no evidence was

adduced by the prosecution to prove that the

sample seal was affixed on the original of

Ext.P6 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 Crl.Appeal No.1329 of 2007

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.

9. Since the sample seal was not

affixed on the forwarding note, the

prosecution could not establish the

tamper-proof despatch of the contraband

to the laboratory. In the said

circumstances, there is no satisfactory

link evidence to show that the

contraband eventually reached the hands

of the chemical examiner by change of

hands in a tamper-proof condition. In the Crl.Appeal No.1329 of 2007

said circumstances, there is no link

evidence to connect the appellant with the

contraband 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.

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 STK