Chandran Pillai S/o Chellapapan Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **CRL.A.No.810 OF 2007** **SC 479/2001 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA** ## **APPELLANT/S:** **CHANDRAN PILLAI S/O.CHELLAPAPAN PILLAI,, SUNIL BHAVAN,KUDAVATTOOR MURI,, ODANAVATTOM VILLAGE,KOTTARAKKARA TALUK.** ## **BY ADV. SRI.PREMCHAND R.NAIR** ## **RESPONDENT/S:** **STATE OF KERALA REP. BY EXCISE INSPECTOR,POOYAPPALLY POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 810/2007** -2- ## **JUDGMENT** 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 21.10.1999 at about 11 p.m., the appellant was found in possession of three litres 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 forwarding note was produced and marked in this case, the tamper – proof despatch of the sample to the laboratory could not be established by the prosecution and hence, the appellant is entitled to benefit of doubt. 5. It appears that no forwarding note was produced ## **Case No. Crl.A 810/2007** and marked before the court below in this case. 6. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus: “Further in the absence of 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 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 ## **Case No. Crl.A 810/2007** -4- condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the 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 **Case No. Crl.A 810/2007** 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], 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. 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 manner and in the said circumstances, the appellant is entitled to benefit of doubt. **Case No. Crl.A 810/2007** -6- In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act and the appellant stands acquitted for the above said offence. The bail bond of the appellant stands discharged and the appellant is set at liberty. ## **SD** ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/ ## **Case No. Crl.A 810/2007** -7- ## **JUDGMENT** **Dated this the 8th day of September 2020** **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE**