Thankappan Pillai 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.1359 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 241/2002 DATED 09-07-2007 OF ADDL. SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES), KOTTARAKKARA** **AGAINST THE ORDER/JUDGMENT IN CP 92/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA** ## **APPELLANT/S:** **THANKAPPAN PILLAI, S/O. NARAYANA PILLAI, MANIKANDAVILASOM VEEDU,ODANAVATTOM MURI, VELIYAM VILLAGE.** **ADV.THAREEQ ANVER, AMICUS CURIAE** **RESPONDENT/S:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SMT. SREEJA.V, PP,** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A.No.1359 of 2007** -2- ## **JUDGMENT** **The appellant was convicted by the court below under Sections 55(a) and 8(2) of the Abkari Act. The appellant was sentenced to simple imprisonment for one year and a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. No separate sentence was awarded under Section 8(2) of the Abkari Act. 2. The prosecution allegation is that on 14.01.1999 at about 5.30 p.m., the appellant was found in possession of 2 litres of arrack in contravention of the provisions of the Abkari Act.** **3. The learned Advocate Saju S.A.** ## **Crl.A.No.1359 of 2007** -3- **had passed away, submitted at the Bar. The learned Advocate Shri.Thareeq Anver has submitted that he is attached to the same office. In view of the above submission, Shri.Thareeq Anver is appointed as Amicus Curiae to argue the case for the appellant. 4. Heard the learned Amicus Curiae and the learned Public Prosecutor.** **5. The learned Amicus Curiae has argued that since no forwarding note was produced or marked before the court, 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.** ## **Crl.A.No.1359 of 2007** -4- **6. It appears that no forwarding note was produced or marked before the court in this case.** **7. 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** ## **Crl.A.No.1359 of 2007** -5- **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 and that benefit must be given to the accused.”** ## **Crl.A.No.1359 of 2007** -6- **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 prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which** ## **Crl.A.No.1359 of 2007** -7- **was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamperproof condition.** **10. In this case, the forwarding** **note was neither produced nor marked before the Court. Therefore, there 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 in a tamper-proof condition and in the said circumstances, the conviction and sentence passed by the court below on the strength of Ext.P.6 chemical analysis report cannot be** ## **Crl.A.No.1359 of 2007** -8- **sustained.** **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