Prakash Kumar s/o Prabhakaran v. State of Kerala and Exise Inspector, Excise Range, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** **Crl.Rev.Pet.No.2960 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CRA 160/2002 OF I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CC 936/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOLLAM** ## **REVISION PETITIONER/S/APPELLANT/ACCUSED:** **PRAKASH KUMAR S/O.PRABHAKARAN, KANIYANKADAVIL VEEDU, MEENATHU CHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV SMT.C.V.RAJALAKSHMI** ## **RESPONDENT/S/COMPLAINANT:** **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 THE EXCISE INSPECTOR EXCISE RANGE, KOLLAM.** **R1 AND R2 BY SMT.M.K.PUSHPALATHA,SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.2960 OF 2006** **2** ## **O R D E R** The revision petitioner was convicted and sentenced by the courts below under Section 55(a) of the Abkari Act. 2. The is that on prosecution allegation 06.05.1997 at about 6.00 p.m., the revision petitioner was found in possession of 65 packets of arrack, each packet having a capacity of 150 ml each in contravention of the provisions of the Abkari Act. The total quantity of the contraband possessed by the revision petitioner was 9.75 litres of arrack. 3. Heard. 4. The learned Counsel for the revision **3** **Crl.Rev.Pet.No.2960 OF 2006** has submitted that since there was petitioner inordinate and unexplained delay in producing the contraband and the sample before the court, the revision petitioner is entitled to benefit of doubt. 5. It appears that the incident in this case was on 06.05.1997. The property list was not marked before the court. However, the property list is available with the records transmitted to this court, which would show that the contraband and the sample were produced before the court only on 07.06.1997. No explanation was given by the prosecution for the delayed production of the contraband and the sample before the court. There is also absolutely no evidence with regard to the safe custody of the contraband and **Crl.Rev.Pet.No.2960 OF 2006** **4** the sample till their production before the court. 6. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to the prosecution case. In this case, since there was long and unexplained delay from 06.05.1997 to 07.06.1997 in producing the contraband and the sample before the court, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the revision petitioner, particularly when there is no evidence with regard to the safe custody of the sample till its production before the court. In the said circumstances, the revision petitioner is entitled to benefit of doubt. **Crl.Rev.Pet.No.2960 OF 2006** **5** 7. There is yet another reason for granting benefit of doubt to the revision petitioner. It appears that no forwarding note was produced or marked in this case. 8. 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”. 9. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the **Crl.Rev.Pet.No.2960 OF 2006** **6** 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. 10. Since no forwarding note was produced or marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Therefore, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the revision petitioner which eventually reached the hands of the Chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the revision **Crl.Rev.Pet.No.2960 OF 2006** **7** petitioner is entitled to benefit of doubt. 11. The courts below failed to appreciate the above aspects while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. In the result, this Criminal Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner stands acquitted. The bail bond of the revision petitioner stands discharged. Needles to state that if the revision petitioner had already deposited any amount before the court pursuant to the direction of this court, the revision petitioner is entitled to reimbursement of the said **Crl.Rev.Pet.No.2960 OF 2006** **8** amount from the court concerned. **Sd/-** **B.SUDHEENDRA KUMAR JUDGE** RK/18.11.2020