Vasanthakumari Aneesh Bhavanam Veedu v. State of Kerala (CRL.A. No. 708 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **CRL.A.No.708 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 607/2002 DATED 19-03-2008 OF ADDL.SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA** ## **APPELLANT/S/ACCUSED:** **VASANTHAKUMARI ANEESH BHAVANAM VEEDU, PARAMCODU MURI,, ILAMADU VILLAGE.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN** ## **RESPONDENT/S/STATE AND COMPLAINANT:** **1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2 SUB INSPECTOR OF POLICE POOYAPPALLY POLICE STATION, POOYAPPALLY.** **R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA,SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.708 OF 2008** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Sections 55(a) and (i) of the Abkari Act. 2. The is that on prosecution allegation 10.03.2000 at about 6.00 p.m., the appellant was found in possession of 3 ½ litres of illicit arrack 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 since there was long and unexplained delay in producing the contraband and the sample **CRL.A.No.708 OF 2008** **3** before the court, the appellant is entitled to benefit of doubt. 5. Ext.P3 is the property list, which would show that the contraband and the sample were produced before the court only on 09.05.2000. PW2 produced the contraband and the sample before the court. PW2 stated that he produced the contraband and the sample before the court on 11.03.2000. Even though the contraband and the sample were produced before the court on 11.03.2000, the same was returned to him by the court, submitted by PW2. Thereafter, he produced the contraband and the sample before the court on 09.05.2000. He admitted that there is no document to show that the contraband and the sample **4** ## **CRL.A.No.708 OF 2008** were produced before the court on 11.03.2000. PW2 also did not state as to why the court returned the contraband and the sample, when he allegedly produced the contraband and the sample before the court on 11.03.2000. 6. It is common knowledge that if PW2 had produced the contraband and the sample before the court on any day prior to 09.05.2000, an endorsement in this regard would have been definitely there on the property list. However, in this case, Ext.P3 property list does not contain any endorsement to indicate that the was before the court on sample produced 11.03.2000 or on any other day prior to 09.05.2000. In the absence of any endorsement in this regard on the forwarding note, it is not safe to believe the oral **CRL.A.No.708 OF 2008** **5** testimony of PW2 in this regard. Therefore, it has to be held that there is no explanation with regard to the delay in producing the contraband and the sample before the court. Since there was unexplained delay from 10.03.2000 to 09.05.2000 in producing 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 appellant. In the said circumstances, the appellant is entitled to benefit of doubt. 7. There is yet another reason to grant benefit of doubt to the It that no appellant. appears forwarding note was produced and marked in this **CRL.A.No.708 OF 2008** **6** 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 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 **CRL.A.No.708 OF 2008** **7** 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. In the said circumstances, 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 by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the **CRL.A.No.708 OF 2008** **8** court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. Needless to state that if the appellant had already deposited any amount before the court pursuant to the direction of this Court, the appellant is entitled to reimbursement of the said amount from the court concerned. **SD/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/12.11.2020