Santosh 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 DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **CRL.A.No.1267 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 862/2002 DATED 27-04-2006 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 176/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM** ## **APPELLANT/S:** **SANTHOSH, S/O.SIVARAMAN, THYVELITHEKKATHIL VEEDU, NEAR PANCHAYATHUKULAM, AYATHILCHERRY, VADAKKEVILA, KOLLAM.** **BY ADV. SRI.DILEEP P.PILLAI SRI. RAJESH NAIR,AMICUS CURIAE** **RESPONDENT/S:** **STATE OF KERALA, REPRSENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. V. SREEJA, PP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.Appeal No.1267 of 2006** -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.** - **The prosecution allegation is** **that on 15.11.1999 at about 5.45 p.m., the appellant was found in possession of** **5 litres of arrack for the purpose of sale in contravention of the provisions of the Abkari Act.** **3. Since there is no representation for the appellant, this Court has appointed Advocate Sri.Rajesh Nair as Amicus Curiae to argue the case for the appellant.** **4. Heard the learned Amicus Curiae** ## **Crl.Appeal No.1267 of 2006** -3- **and the learned Public Prosecutor.** **5. The learned Amicus Curiae has argued that since no forwarding note was marked and proved in this case, the appellant is entitled to benefit of doubt.** **6. It appears that no forwarding note was marked and proved in this case.** **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** ## **Crl.Appeal No.1267 of 2006** -4- ## **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 ultimately reached the hands of the** **chemical examiner by change of hands in a** **tamper- proof condition.** **9. Since no forwarding note was marked and proved in this case, the prosecution could not establish the tamper -proof despatch of the sample to the laboratory. In the said circumstances, there** ## **Crl.Appeal No.1267 of 2006** -5- **is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. Therefore, there is no link evidence to connect the appellant with the sample anlaysed in the laboratory. In the said circumstances, the appellant is entitled to benefit of doubt.** **10. There is yet another reason for granting benefit of doubt to the appellant. The incident in this case was on 15.11.99. However, Ext.P3 property list would show that the contraband and the sample were produced before the court only on 24.11.99.** ## **Crl.Appeal No.1267 of 2006** -6- **PW3 produced the contraband and the sample before the court. PW3 stated that even though the contraband and the sample were produced before the court when the accused was produced before the court, the court returned the same as there was no space in the court for keeping them. However, the court below had considered that aspect in Paragraph 16 of the judgment. The court below observed that it was clearly stated in Ext.P5 remand application that the contraband and the sample were kept in the Police Station for the purpose of production of the same before the court. The court below further observed that the court below was convinced that the contraband and the** ## **Crl.Appeal No.1267 of 2006** **sample were produced before the court only on 24.11.99 with a delay of eight days. It appears from Ext.P5 coupled with Ext.P3 that the contraband and the sample were produced before the court only on 24.11.99. No explanation was given by PW3 for the delay in producing the contraband and the sample before the court. There is also no evidence from the side of PW3 to prove the safe custody of the contraband and the sample till their production before the court. Since there was unexplained delay from 15.11.99 to 24.11.99 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** ## **Crl.Appeal No.1267 of 2006** -8- **laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances also, the appellant is entitled to benefit of doubt.** **In the result, this appeal stands allowed setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK