Sunil @ Ana Suni vs State Of Kerala
2021 Latest Caselaw 9999 Ker

Citation : 2021 Latest Caselaw 9999 Ker
Judgement Date : 24 March, 2021

Kerala High Court

Sunil @ Ana Suni vs State Of Kerala on 24 March, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                      CRL.A.No.2396 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 196/2002 DATED 02-12-2006 OF
        ADDITIONAL DISTRICT COURT (ADHOC)III, TRIVANDRUM

AGAINST THE ORDER/JUDGMENT IN CP 65/2001 OF JUDICIAL MAGISTRATE OF
                     FIRST CLASS -I,ATTINGAL


APPELLANTS/ACCUSED 1 & 3:

      1      SUNIL @ ANA SUNI
             S/O.VISWAMBARAN, SUSHAMAVILASOM,
             PARAPPIL, ANAKUDI MURI, KALLARA VILLAGE.

      2      VASAVAN KANI,
             S/O KESAVAN KANI
             CHETTIYAMKONNAKAYAM, EDUKKAMPARA VEEDU,
             MAILAMMOODU, ANAKUDI MURI,, PANGODE VILLAGE.

             BY ADV. SRI.J.JAYAKUMAR

RESPONDENT/COMPLAINANT:

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

             R1 BY SMT. M. K. PUSHPALATHA, SR. PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2396 OF 2006
                                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

23.08.1999 at about 9.15 a.m., the appellants were

found in possession of a total quantity of 21 litres of

arrack, in contravention of the provisions of the Abkari

Act.

3. Heard.

4. The learned counsel for the appellants has

argued that since there is no evidence to prove the

drawing of the sample from the contraband and sending

the same to the laboratory in a tamper-proof condition,

the appellants are entitled to be acquitted.

5. PW3 detected the offence. PW3 stated that

he seized the contraband as such at the spot. Ext.P5 is CRL.A.No.2396 OF 2006

the property list, which would show that three cans,

each can containing 7 litres of arrack each, were

produced before the court as per Ext.P5 property list.

Ext.P1 Mahazar would show that the contraband as

such had been seized from the spot. Ext.P7 is the

certificate of chemical analysis, which would show that

three sealed bottles of samples of 180 ml each were

received in the laboratory. This would show that the

samples were drawn from the contraband after the

production of the contraband before the court.

However, the Thondy Clerk of the court was not

examined to prove the drawing of the samples and

sending the same to the laboratory in a tamper-proof

condition.

6. In Sasidharan v. State of Kerala [2007 (1) KLT

720], the Court observed thus:

CRL.A.No.2396 OF 2006

"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

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 the Thondy Clerk was not examined in

this case to prove the drawing of the sample and

sending the same to the laboratory in a tamper-proof

condition, there is no satisfactory link evidence to show

that the same samples which were drawn from the CRL.A.No.2396 OF 2006