Alrevi and Ponnappan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938 Crl.Rev.Pet.No. 2212 of 2010 ( ) --------------------------------- CRA 647/2008 of ADDL.DISTRICT COURT (ADHOC)-II, ALAPPUZHA SC 774/2005 of PRINCIPAL SUB COURT,ALAPPUZHA ## REVISION PETITIONER/APPELLANTS/ACCUSED: --------------------------------------------------------- 1. ALREVI, S/O.KUTTAPPAN, VADACHIRAYIL HOUSE, PALLANA MURI,, THRIKKUNNAPPUZHA PANCHAYAT, ALAPPUZHA DISTRICT. 2. PONNAPPAN, S/O.BHARATHAN, THEKKE ATTUPURAM HOUSE, DEVASWOMCHIRA BHAGOM, ALAPPUZHA DISTRICT. BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR. SRI RAMESH CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.2212 of 2010 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of October 2016 ## O R D E R The revision petitioners were convicted and sentenced under Section 55(g) of the Abkari Act by the courts below concurrently. 2. The prosecution allegation is that on 2.9.2003 at 5 p.m., the revision petitioners were found in possession of 210 litres of wash, in contravention of the provisions of the Abkari Act. ## 3. Heard. 4. The learned counsel for the revision petitioners has argued that since no forwarding note was produced or Crl.R.P.2212/2010 : 2 : marked before the court, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution and consequently, the revision petitioners are entitled to benefit of doubt. The records would show that no forwarding note was marked before the court. No forwarding note is also available with the records transmitted to this court, which would show that no forwarding note was produced and marked before the court. In Prakasan v. State of Kerala [2016(1) KLD 311], the court held thus:- “Further in the absence specimen seal 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 Crl.R.P.2212/2010 : 3 : 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 tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of 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.” ## 5. In Sasidharan v. State of Kerala [2007 (1) KLT 720], ## the court observed thus:- “Without the link evidence of actual sampling by Crl.R.P.2212/2010 : 4 : 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.” 6. The Division Bench of this Court in Ravi v. State of Kerala [2011(3) KLT 353] 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. 7. In this case, the forwarding note was neither produced nor marked before the court. Therefore, there is no satisfactory link evidence to show that it was the same Crl.R.P.2212/2010 : 5 : sample, which was drawn from the contraband seized from the revision petitioner, reached the hands of the chemical examiner in a tamper-proof condition. Since the forwarding note was not produced or marked before the court, there is no link evidence to prove that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the revision petitioner. For the said reason, the revision petitioner is entitled to benefit of doubt. 8. It is also to be noted that the incident in this case was on 2.9.2003. However, the sample was produced before the court only on 6.9.2003. There is no explanation from the side of the prosecution as to why there was delay in producing the sample before the court. There is also no evidence with regard to the safe custody of the sample till Crl.R.P.2212/2010 : 6 : the same was produced before the court. Therefore, 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 revision petitioner. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained and consequently, I set aside the same. In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55(g) of the Abkari Act and the revision petitioners are acquitted for the said offence. The bail bonds of the revision petitioners stand cancelled and Crl.R.P.2212/2010 : 7 : they are set at liberty. Needless to state that if the revision petitioners had deposited any amount before the trial court pursuant to the order of this court dated 23.7.2010 in Crl.M.A. No.7008 of 2010, the revision petitioners are entitled to reimbursement of the said amount from the trial court. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.27.10.2016_ _// True Copy //_ _PA to Judge_