Bhadran vs State Of Kerala
2021 Latest Caselaw 9758 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.2186 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 180/2001 DATED 20-10-2006 OF
            ADDITIONAL SESSIONS COURT (ADHOC), KOLLAM

 AGAINST THE ORDER/JUDGMENT IN CP 200/1999 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS -I, KOLLAM


APPELLANT/S/ACCUSED:

             BHADRAN
             S/O SUKUMARAN,SREENILAYAM VEEDU,
             NENMENI, VADAKKUM MURI,
             MANTROTHURUTHU VILLAGE, KOLLAM DIST.

             BY ADVS.
             SRI. K.SIJU
             SRI.S.SUDHEESHKAR

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REP.BY SUB INSPECTOR OF POLICE,
             EAST KALLADA POLICE STATION THROUGH PUBLIC
             PROSECUTOR,, HIGH COURT KERALA, ERNAKULAM.


             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.2186 OF 2006

                           2




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 55(a) and 55(i) of the

Abkari Act.

2. The prosecution allegation is that on

05.10.1999 at about 12 noon, the appellant was found

in possession of 1.350 litres of Indian Made Foreign

Liquor 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.2186 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.2186 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.2186 OF 2006

the conviction and sentence passed by the court below

relying on Ext.P5 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