Kerala High Court
Mariadasy, D/O. Anthony Lopus vs State Of Kerala on 1 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
CRL.A NO. 1007 OF 2007
AGAINST THE JUDGMENT IN S.C.NO.1157/2001 OF ADDITIONAL SESSIONS
JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA
APPELLANT/ACCUSED:
MARIADASY, D/O. ANTHONY LOPUS,
VALIYAPPALLY COLONY,
PULLUVILA, KUNNUMKULAM DESOM,
KARUMKULAM VILLAGE.
BY ADV SRI.S.MOHAMMED AL RAFI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY SRI.RANJITH GEORGE, GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1007 OF 2007
2
JUDGMENT
The appellant is the accused in S.C.No.1157 of 2001 on the
file of the Additional Sessions Judge for the Trial of Abkari Act
Cases, Neyyattinkara.
2. The gist of the prosecution is that on 16.09.1999, the
Sub Inspector of Police, Kanjiramkulam found the appellant in
possession of a 5 litres jerry can filled with about 4 litres of illicit
arrack. Following the investigation into the matter, the
appellant/accused was charge sheeted. On the appellant/accused
pleading not guilty, following trial, the appellant/accused was
found guilty and convicted for the offence punishable under
Section 58 of the Abkari Act and was sentenced to undergo
rigorous imprisonment for a period of one year and to pay a fine
of Rs.1,00,000/- and in default to undergo rigorous imprisonment
for a further period of three months.
3. Shri S. Mohammed Al Rafi, the learned counsel
appearing for the appellant/accused would submit that this is a
case where the identity of the sample has not been established or
linked with the alleged illicit arrack seized from the
appellant/accused. He submits that a reference to the forwarding
CRL.A NO. 1007 OF 2007
note used for forwarding the sample for chemical analysis does
not bear the sample seal used on the samples and on the arrack
allegedly seized from the appellant/accused. He would also
submit that a reference to Ext.P6 covering letter that the samples
seized in several cases were forwarded together for chemical
examination.
4. This Court in Sathi v. State of Kerala [ILR 2007(1)
718] has taken a view that the prosecution in the Abkari Act can
succeed only if it is proved that the sample which was analyzed in
the chemical examiner's laboratory was the very same sample
which was drawn from the bulk quantity of the alleged
contraband substance said to have been possessed by the
accused. Similarly, in Rajamma v. State of Kerala [2014 (1)
KLT 506], this Court has taken the view that where there is no
evidence to convince the court that the prosecution has proved
that the sample seal or specimen impression of the seal alleged
to have been affixed in the sample has been provided to the
chemical examiner for their verification and to ensure that the
sample seal so provided tallies with the seal affixed in the sample
bottle, the prosecution must fail. In the facts of the present case,
the forwarding note does not carry the specimen seal. Further, a
perusal of Ext.P6 shows that samples in several cases were sent
CRL.A NO. 1007 OF 2007
together for chemical examination with a common sample seal.
Thus, the identity of the sample cannot be said to be relatable to
the contraband seized from the appellant/accused. In that view of
the matter, the appellant/accused is entitled to be acquitted on
that short ground.
In the result, the appeal is allowed. The conviction and
sentence imposed on the appellant/accused in S.C.No.1157 of
2001 on the file of the Additional Sessions Judge for the Trial of
Abkari Act Cases, Neyyattinkara will stand set aside and the
accused will stand acquitted.
Sd/-
GOPINATH P.
JUDGE
DK
