Mathayi @ Raju vs State Of Kerala
2021 Latest Caselaw 9544 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.384 OF 2008

AGAINST THE ORDER/JUDGMENT IN SC 422/2006 DATED 07-02-2008 OF
        ADDITIONAL DISTRICT COURT(ADHOC 2), THRISSUR


APPELLANT/ACCUSED:

            MATHAYI @ RAJU
            S/O POULOSE, PALLIKUNNEL HOUSE,
            SIMBO DESOM,, MANNAMANGALAM VILLAGE,
            THRISSUR TALUK.

            BY ADVS.
            SRI.P.G.SURESH
            SRI.C.V.MANUVILSAN

RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

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

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.NO.384 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 03.03.2003

at about 7 p.m, the appellant was found in possession of

2 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 Ext.P9 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 argument. CRL.A.NO.384 OF 2008

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 provided in 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 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

hands of the chemical examiner by change of hands in a

tamper proof condition.

CRL.A.NO.384 OF 2008

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.P13 Certificate of Chemical Analysis, cannot be

sustained.

In the result, this Criminal Appeal stands allowed, CRL.A.NO.384 OF 2008

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/22.03.2021