Ajayan s/o Sankaran v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938 CRL.A.No. 1362 of 2004 (B) --------------------------AGAINST THE JUDGMENT IN SC 1656/2002 of III ADDL. SESSIONS COURT, KOLLAM DATED 28-07-2004 AGAINST THE JUDGMENT IN CP 276/2001 of J.M.F.C. - I, KARUNAGAPPALLY APPELLANT(S)/ACCUSED NO.2: ------------------------- AJAYAN S/O. SANKARAN, THAMARASSERIL VEEDU, ADINADU MURI,, KULASEKHARAPURAM VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/RESPONDENT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## PUBLIC PROSECUTOR SRI. C.K. PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl.A. No. 1362 of 2004** ------------------------------------------------- Dated this the 6[th] day of January, 2017 ## **JUDGMENT** The appellant is the second accused in S.C. No. 1656 of 2002 on the files of the III Additional Sessions Court, Kollam. The appellant was convicted and sentenced by the court below under Section 55 (a) of the Abkari Act. 2 The prosecution allegation is that on 14-11-2000 at about 5.30 p.m., the appellant and the other accused together were found in possession of 5 litres of arrack in contravention of the provisions of the Abkari Act. 3. Before the trial Court, PW1 to PW3 were examined and Exts. P1 to P4 were marked for the prosecution besides identifying MO1 to MO3 series. Ext. Crl.A. No. **1362 of 2004** -2- D1 was marked for the defence. ## 4. Heard. 5. The learned counsel for the appellant has argued that eventhough the incident in this case was on 14-112000, the contraband articles and the sample were produced before the Court only on 14-12-2000 and in the said circumstances, the appellant is entitled to benefit of doubt. 6. PW3 was the Sub Inspector of police who detected the offence. PW3 produced the contraband article and the sample before the Court . PW3 stated that he produced the contraband on 14-12-2000. He stated that he was engaged in other job and hence, there was delay in producing the sample and the contraband articles before the court. The reason stated by PW3 for not having Crl.A. No. **1362 of 2004** -3- produced the sample before the court immediately after the seizure cannot be said to be a plausible reason. Since there was inordinate and unexplained delay in producing the sample before the court, there cannot be any guarantee that the sample produced before the court and examined in the laboratory was the sample drawn from the contraband seized from the appellant. 7. It is also to be noted that no forwarding note was marked before the court below. PW3 did not state about any forwarding note prepared by him in this case. No forwarding note is also available with the records transmitted to this Court, which would show that no forwarding note was prepared or marked before the court below. 8. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311] the Court held thus: “Further in the absence of specimen seal Crl.A. No. **1362 of 2004** -4- impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the Crl.A. No. **1362 of 2004** -5- contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 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.” In **Ravi v. State of Kerala [2011 (3) KLT 353], t** he Crl.A. No. **1362 of 2004** -6- 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. In this case, the forwarding note was neither prepared nor produced before the Court. Therefore, there is no satisfactory link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper-proof condition and in the said circumstances, it cannot be said that there is link evidence to prove that the sample examined in the laboratory was the sample drawn from the contraband seized from the appellant and consequently the appellant is entitled to benefit of doubt on this ground as well. The Crl.A. No. **1362 of 2004** -7- above vital aspects were not considered by the court below while appreciating the evidence. For the said reason, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this Appeal stands allowed setting aside the conviction and sentence passed by the court below under Sec. 55(a) of the Abkari Act and the appellant is acquitted for the said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty. **B. SUDHEENDRA KUMAR, JUDGE** . Ani/7/1/