Vijaya Babu @ Sadanandan vs State Of Kerala
2021 Latest Caselaw 9769 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.984 OF 2007

AGAINST THE ORDER/JUDGMENT IN SC 183/2001 DATED 18-05-2007 OF
   ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA


APPELLANT/ACCUSED:

            VIJAYA BABU @ SADANANDAN
            S/O.EBENZEER, VELATTIMELEPUTHEN VEEDU,,
            NADUKKADU, PALLICHAL DESOM & VILLAGE,,
            NAYYATTINKARA.

            BY ADV. SRI.G.SUDHEER

RESPONDENT/COMPLAINANT:

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


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

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.NO.984 OF 2007
                            -2-




                       JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 58 of the Abkari Act.

2. The prosecution allegation is that on 19.06.1999

at about 6 p.m., the appellant was found in possession of

750 ml 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.P2 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.984 OF 2007

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. PW5 had taken the sample. He produced the

sample before the court along with the forwarding note.

Ext.P2 is the copy of the forwarding note, which does not

contain the sample of the seal affixed on the sample by

PW5. No evidence was also 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 CRL.A.NO.984 OF 2007

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

original 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. Consequently, there is no link evidence to

connect the appellant with the sample analysed in the

laboratory. In the said circumstances, the conviction and

sentence passed by the court below relying on Ext.P5

Certificate of Chemical Analysis, cannot be sustained. CRL.A.NO.984 OF 2007

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.

Nkr/23.03.2021