Babu @ Suresh vs State Of Kerala
2021 Latest Caselaw 9755 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                       CRL.A.No.1976 OF 2006(C)

   AGAINST THE ORDER/JUDGMENT IN SC 68/2004 DATED 20-09-2006 OF
       ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA


APPELLANT/S/ACCUSED:

      1      BABU @ SURESH
             S/O KOCHUKRISHNAN,KOCHUTHUNDIYIL VEEDU,
             PARIYARAM MURI,ELANTHOOR VILLAGE,
             KOZHENCHERY TALUK.

      2      MOHANAN @ MANGADI SO.RAGHAVAN
             KUZHIKKALLA MEMURIYIL VEEDU, ELANTHOOR VILLAGE,
             KOZHENCHERRY TALUK.

             BY ADV. SRI.THOMAS ANTONY

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REP.BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ADDITIONAL S.I. OF POLICE, ARANMULA)


             SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1976 OF 2006(C)

                             2




                        JUDGMENT

The appellants were convicted and sentenced by

the court below under Section 8(2) of the Abkari Act.

2. The prosecution allegation is that on

01.07.2002 at about 5.00 p.m., the appellants were

found in possession of 13 packets of arrack, each

packet having a capacity of 100 ml each, in

contravention of the provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the appellants has

argued that since no sample seal was affixed on the

copy of the forwarding note, the appellants are entitled

to be acquitted.

5. The learned counsel for the appellants relied CRL.A.No.1976 OF 2006(C)

on the decision of this Court in Krishnan H. v. State

[2015(1) KHC 822] to support his argument.

6. In Krishnan (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. Ext.P7 is the copy of the forwarding note

which does not contain the sample seal at the space

provided for the same or at any other place. 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.

CRL.A.No.1976 OF 2006(C)

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.

9. Since the sample seal was not affixed on the

the forwarding note, the prosecution could not

establish the tamper-proof despatch of the samples to

the laboratory. In the said circumstances, there is no

satisfactory link evidence to show that the same

samples which were drawn from the contraband

seized from the appellants, which eventually reached

the hands of the chemical examiner by change of hands CRL.A.No.1976 OF 2006(C)

in a tamper-proof condition. In the said circumstances,

there is no link evidence to connect the appellants

with the samples analysed in the laboratory.

Consequently, the conviction and sentence passed by

the court below relying on Ext.P8 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 appellants stand

acquitted. The bail bonds of the appellants stand

discharged.

SD/-

B.SUDHEENDRA KUMAR JUDGE RK/23.03.2021