Ajayan vs State Of Kerala on 30 November, 2020

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Kerala High Court

Ajayan vs State Of Kerala on 30 November, 2020

Bench: B.Sudheendra Kumar

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

   MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942

                       CRL.A.No.2228 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 111/2007 DATED 19-10-2007 OF
        ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA


APPELLANT/S/ACCUSED:

             AJAYAN
             S/O.VISWANANTHAN, PARIKKALAYYATHU VEEDU, VALLIKUNNAM
             MURI, VALLIKUNNAM VILLAGE,
             MAVELIKKARA.

             BY ADVS.
             SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
             SRI.A.R.DILEEP

RESPONDENT/S/STATE AND COMPLAINANT:

      1      STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA

      2      THE EXCISE RANGE INSPECTOR
             MAVELIKKARA EXCISE RANGE OFFICE,
             MAVELIKKARA.


             SMT. M.K.PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2228 OF 2007

                            2




                        JUDGMENT

The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

2. The prosecution allegation is that on 23.12.1997 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. Heard.

4. The learned Counsel for the appellant has argued that since no forwarding note was produced or marked in this case, the appellant is entitled to benefit of doubt.

5. It appears that no forwarding note was CRL.A.No.2228 OF 2007 3 produced or marked in this case.

6. 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".

7. 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 CRL.A.No.2228 OF 2007 4 which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition.

8. Since no forwarding note was produced and 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 appellant which eventually reached the hands of the Chemical examiner by change of hands in a tamper-proof condition. Consequently, there is no link evidence to connect the appellant with the sample analysed in the laboratory. In the said circumstances, the appellant is entitled to benefit of CRL.A.No.2228 OF 2007 5 doubt.

In the result, this Criminal 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 RK/30.11.2020

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