Soman vs State Of Kerala
2021 Latest Caselaw 9757 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.2211 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 571/2001 DATED 19-10-2006 OF
            ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM

AGAINST THE ORDER/JUDGMENT IN CP 84/2000 OF JUDICIAL MAGISTRATE OF
                 FIRST CLASS - I, KARUNAGAPPALLY


APPELLANT/S/ACCUSED:

             SOMAN
             S/O SHEKARAN,PEEDIKATHARAYIL VEEDU,
             KOTTAKKUPURAM MURI,, KULASHEKARAPURAM VILLAGE,
             KARUNAGAPPALLY TALUK.

             BY ADV. SRI.T.GOPALAKRISHNAN

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE INSPECTOR OF EXCISE RANGE,
             KARUNAGAPPALLY THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.
             (CRIME NO.146/97 OF KARUNAGAPPALLY EXCISE RANGE)

             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.2211 OF 2006

                            2




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 55(i) of the Abkari Act.

2. The prosecution allegation is that on

10.12.1997 at about 7.50 p.m., the appellant was found

in possession of 1½ 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 appellant has

argued that since no forwarding note was produced or

marked in this case, the appellant is entitled to be

acquitted.

CRL.A.No.2211 OF 2006

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 case under the Abkari Act could CRL.A.No.2211 OF 2006

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. 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, CRL.A.No.2211 OF 2006

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

RK/23.03.2021