Kerala High Court
Anilkumar vs State Of Kerala on 23 March, 2021
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.2009 OF 2006
SC 384/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III,
PATHANAMTHITTA
CP 105/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS
THIRUVALLA
APPELLANT/S:
ANILKUMAR
AGED 27 YEARS
S/O SANKARA NARAYANAN, NARAKATHINAMKUZHY VEEDU,
PUTHOOR PADI, KOTTANGAL MURI, KOTTANGAL
VILLAGE.
BY ADV. SRI.S.MUHAMMED HANEEFF
SMT. BINDU DAS. M, AMICUS CURIAE.
RESPONDENT/S:
STATE OF KERALA
REP. BY SUB INSPECTOR OF POLICE, PERUMPETTY
POLICE STATION, (CRIME NO.130/2003), REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
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:
Case No. Crl.A 2009/2006
-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 9.12.2003
at about 9.40 a.m., the appellant was found in possession
of one litre of arrack, in contravention of the provisions of
the Abkari Act.
3. Since there is no representation for the appellant,
this Court has appointed Adv.Smt.Bindudas M. as the
Amicus Curiae to argue the case for the appellant.
4. Heard the learned Amicus Curiae and the learned
senior Public Prosecutor.
5. The learned Amicus Curiae has argued that since
no seal was affixed on the copy of the forwarding note, the
Case No. Crl.A 2009/2006
appellant is entitled to be acquitted.
6. The learned Amicus Curiae relied on the decision
of this court in Krishnan H. v. State [2015(1) KHC 822] to
buttress her argument.
7. It appears that no sample seal was affixed on
Ext.P9 copy of the forwarding note. 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. In
this case, no evidence was adduced by the prosecution to
show that the sample seal was affixed on the original
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
Case No. Crl.A 2009/2006
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 copy
of the forwarding note, the prosecution could not establish
the tamper-proof despatch of the sample to the laboratory.
Consequently, 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.P10 Certificate of
Chemical Analysis, cannot be sustained.
In the result, this Criminal Appeal stands allowed,
setting aside the conviction and sentence passed by the
Case No. Crl.A 2009/2006
court below and the appellant stands acquitted. The bail
bond of the appellant stands discharged.
Needless to state that if the appellant had already
deposited any amount before the court pursuant to the
direction of this court, the appellant is entitled to
reimbursement of the said amount from the court
concerned.
sd
B. SUDHEENDRA KUMAR, JUDGE.
dl/
