Sathyaseelan vs State Of Kerala
2021 Latest Caselaw 9537 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.302 OF 2008

  AGAINST THE ORDER/JUDGMENT IN SC 618/2002 OF ADDITIONAL
    SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),
                        KOTTARAKKARA


APPELLANT/S:

      1        SATHYASEELAN,
               S/O KUNJU PILLAI,SAJTH MANDIRAM, MARANADU MURI,
               PAVITHRESWARAM VILLAGE, KOTTARAKKARA.

      2        RAJU, S/O.GEORGE,
               RENJITH NIVAS, THEVALAPPURAM MURI,
               NEDUVATHOOR VILLAGE, KOTTARAKKARA.

               BY ADVS.
               SRI.M.V.THAMBAN
               SRI.K.V.ANIL KUMAR

RESPONDENT/S:

               STATE OF KERALA,
               REP.BY THE 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.302 of 2008


                                      -2-



                                   JUDGMENT

The appellants were convicted and

sentenced by the court below under Section

55(a) of the Abkari Act.

2. The prosecution allegation is

that on 1.11.1999 at about 6.30 p.m., the

appellants were found in possession of four

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

appellants has argued that since no

forwarding note was produced and marked in

this case, the appellants are entitled to be Crl.Appeal No.302 of 2008

acquitted.

5. It appears that no forwarding

note was produced or marked in this case.

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 Crl.Appeal No.302 of 2008

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.

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. 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

appellants which eventually reached the

hands of the Chemical Examiner by change of Crl.Appeal No.302 of 2008

hands in a tamper-proof condition. In the

said circumstances, there is no link evidence

to connect the appellants with the sample

anlaysed 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 appeal stands allowed

setting aside the conviction and sentence

passed by the court below and the appellants

stand acquitted. The bail bonds of the

appellants stand discharged.

Needless to state that if the appellants

had already deposited any amount before the

trial court pursuant to the direction of

this Court, the appellants are entitled to Crl.Appeal No.302 of 2008

reimbursement of the said amount from the

court concerned.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK