Sivasankara Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938 CRL.A.No. 1972 of 2004 ( ) --------------------------SC 501/1999 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-1), KOLLAM APPELLANT/ACCUSED:: ----------------------------- SIVASANKARA PILLAI, S/O.CHELLAPPAN PILLAI, IRATTUKULANGARA THUNDIL VEEDU, KILIKOLLOOR CHERI. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT:: ----------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI M V ANANTHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.1972 of 2004 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of January 2017 ## JUDGMENT The appellant was convicted by the court below for the offene under section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 7.11.1997 at 7.25 p.m., the appellant was found in possession of 10 litres of spirit, for the purpose of sale in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellant has argued that even though the incident in this case was on 7.11.1997, the contraband article and the sample were produced before Crl.A.1972/2004 : 2 : the court only on 11.11.1997 and in the said circumstances, the appellant is entitled to benefit of doubt. 5. It appears from Ext.P3 property list that the contraband articles and the sample were produced before the court only on 11.11.1997 even though the incident was on 7.11.1997. No explanation was given by the prosecution as to why there was delay in producing the contraband and the sample before the court. There is also no evidence with regard to the safe custody of the contraband and the sample till their production before the court. Since there was unexplained delay 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 Crl.A.1972/2004 : 3 : the contraband seized from the appellant, particularly when there is no evidence regarding the safe custody of the sample till its production before the court and consequently, the appellant is entitled to benefit of doubt. 6. It is also to be noted that no forwarding note was marked in this case before the court. No forwarding note is also available with the records transmitted to this court, which would show that no forwarding note was not prepared or produced before this court. 7. 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 Crl.A.1972/2004 : 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 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.” ## 8. In Sasidharan v. State of Kerala [2007(1)KLT 720], ## the court held thus:- “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and Crl.A.1972/2004 : 5 : 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. 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. 10. 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 Crl.A.1972/2004 : 6 : sample drawn from the contraband seized from the appellant which eventually 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 examined in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, 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 under Section 55(a) of the Abkari Act and the appellant stands acquitted. The bail bond of the appellant stands discharged. Needless to state that if the appellant had deposited Crl.A.1972/2004 : 7 : any amount before the court below pursuant to the direction of this court, the appellant is entitled to reimbursement of the same from the court below. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/ 23.1..2017_ _// True Copy //_ _PA to Judge_