Hari, S/o Thankappan Nair; Krishnan S/o Chellayyan Nadar; Sasi S/o Sathyanesan – Appellants v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **CRL.A.No.656 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 758/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** ## **AGAINST THE ORDER/JUDGMENT IN CP 72/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** ## **APPELLANT/S/ACCUSED 1 TO 3:** - **1 HARI, S/O. THANKAPPAN NAIR, NILAMEL THADATHARIKATHU VEEDU, MUKUNTHARA DESOM,, KALLIKKADU VILLAGE.** **2 KRISHNAN S/O CHELLAYYAN NADAR CHARUVILAKATHU PUTHEN VEEDU, MUNDAVANKUNNU,, MUKUNTHARA DESOM, KALLIKKADU VILLAGE.** - **3 SASI S/O SATHYANESAN NEDUKALTHERITHADATHARIKATHU VEEDU,, MUKUNTHARA DESOM, KALLIKKADU VILLAGE.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.656 OF 2007** **2** ## **JUDGMENT** The appellants were convicted and sentenced by the court below under Section 55 (g) of the Abkari Act. 2. The is that on prosecution allegation 06.12.1999 at about 4.30 p.m., the appellants were found in possession of 30 litres of wash for the purpose of manufacturing arrack and 500 ml of illicit arrack, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned Counsel for the appellants has argued that since no forwarding note was produced or marked in this case, the appellants are entitled to **CRL.A.No.656 OF 2007** **3** benefit of doubt. 5. It appears that PW4 had taken the sample from the arrack. However, the sample from the wash was taken by the Police. The sample of arrack and the sample of wash were forwarded by PW4 to the laboratory. PW4 did not state that he affixed the facsimile of the seal on the original forwarding note. 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 **CRL.A.No.656 OF 2007** **4** 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 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 **CRL.A.No.656 OF 2007** **5** and that benefit must be given to the accused.” 7. 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.” 8. 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 **CRL.A.No.656 OF 2007** **6** ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition. 9. In Krishnan.H v. State [2015 (1) KHC 822], the court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. 10. In this case, the evidence of PW4 is silent with regard to the seal affixed on the original forwarding note. The copy of the forwarding note is available with the records transmitted to this Court, even though the same was not marked. However, the said forwarding note does not contain the sample seal. Since no evidence was adduced by the prosecution to show that **CRL.A.No.656 OF 2007** **7** the sample seal was provided on the original forwarding note, it has to be held that the prosecution could not establish the tamper- proof despatch of the samples to the laboratory and consequently, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellants. In the said circumstances, there cannot be any conviction on the basis of Ext.P6 series of certificates of chemical analysis. Consequently, the conviction and sentence passed by the court below on the strength of Ext.P6 series of certificates of chemical analysis cannot be sustained. In the result, this Criminal Appeal stands allowed, **CRL.A.No.656 OF 2007** **8** setting aside the conviction and sentence passed by the court below under Section 55(g) of the Abkari Act and the appellants stand acquitted for the said offence. The bail bonds of the appellants stand discharged. ## **SD/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/18.09.2020