Sreedharan vs State Of Kerala on 25 June, 2020
The
relevant portion of the judgment in Smithesh's case (supra) is
extracted hereunder:
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Smithesh vs State Of Kerala Represented By The on 17 January, 2008
Sathyan @ Kunjan vs State Of Kerala on 18 June, 2020
11. Moreover, in this case, admittedly, no sample is
taken from the contraband article by the detecting officer from
the spot for the purpose of analysis. It seems that the sample
was taken by the Court. In the analyst report, it is stated that
a sample bottle was received. The Court has no business to
take a sample from the contraband article. This point was
considered by this Court in Smithesh v. State of Kerala
(2019(2) KLT 974). Relevant paragraph of the above
decision is extracted hereunder:
Vasantha @ Molly vs State Of Kerala on 16 June, 2020
In Smithesh v. State of Kerala (2019(2) KLT 974), this
Court observed that the Magistrate had no business at all to
collect any sample from the property produced before the
court. Relevant paragraph of the above decision is extracted
hereunder:
Ravi @ Raveednran vs State Of Kerala on 25 February, 2020
It is submitted that the sample
should be drawn by the Detecting Officer, immediately after seizure
of the contraband, that too in the presence of the accused and
independent witnesses, if any, available. The sample thus drawn
should be produced before the jurisdictional Magistrate Court
without delay and from there it has to be forwarded to the Chemical
Examiner, under a forwarding note, which should necessarily
contain the sample of the seal affixed on the bottle. It is pointed out
that the procedure of either the Magistrate concerned or the
officials attached to the Magistrate Court drawing sample from the
seized contraband has been deprecated by this Court, holding such
procedure to be a fatal defect. The decision in Smithesh v. State
of Kerala [2019 (2) KLT 974], paragraph 7 which is relied on by
the learned counsel reads as follows :-
Muraleedhara Kurup vs State Of Kerala on 8 July, 2020
12. No sample is taken from the spot by the
Detecting Officer in this case. A perusal of Ext.P2 seizure
mahazar, it is clear that, no sample is taken by the Detecting
Officer from the spot. This Court in Smithesh v. State of Kerala
(2019 (2) KLT 974) considered this point. This Court observed
that, the learned Magistrate has no business at all to collect
any sample from the property produced before the court. The
relevant paragraph of the judgment is extracted hereunder :
Prashanth Poojari vs State Of Kerala on 1 October, 2020
In Smithesh v. State of Kerala
[2019 KHC 3526] this Court held in paragraph 6 of the
judgment as follows:-
Omanakuttan Pillai vs State Of Kerala on 7 December, 2020
11. A perusal of Ext.P1 seizure mahazar, it is clear that no
sample is taken by the detecting officer from the spot. This Court
in Smithesh v. State of Kerala (2019 (2) KLT 974) considered
this point. This Court observed that the learned Magistrate has
no business at all to collect any sample from the property
produced before the court. The relevant paragraph of the
judgment is extracted hereunder :
Sudhakaran vs State Of Kerala on 1 February, 2021
10. In the instant case it is seen that no specimen seal
was affixed on the sample that was taken at the time the
contraband was seized. In the absence of specimen seal
affixed at the time of sampling and thereafter at the time of
preparation of the forwarding note clearly shows that the
prosecution case cannot be believed in its entirety and the
benefit of doubt is certainly be accorded to the accused. As
rightly pointed out by the learned counsel for the appellant
CRL.A.No.1070 OF 2007
6
the aforesaid proposition is categorically laid down in the
decisions reported in Smithesh's case (supra),
Balachandran's case (supra) and Sajeevan's case
(supra).
Johny vs State Of Kerala on 17 March, 2021
5. Further, it is seen from Ext.P9 forwarding note that it does
not bear any date. The name of the Excise Guard through whom the
materials have to be forwarded for chemical examination is not stated.
Even though, the Judicial First Class Magistrate has signed the
document, no date is written along with the signature to show the date
on which the learned Magistrate had endorsed. The space allotted for
the impression for the specimen seal used for sealing the sample has
been left blank. The seal of the Court bears the date '18.11.2002' to
suggest that the forwarding note was received in the Court only on
18.11.2002 which is even much after Ext.P8 property list was received
by the Court. From Ext.P10 report of the Chemical Examiner, it is seen
that the articles were received by the Examiner only on 27.11.2002.
CRL.A.No.945 OF 2006
5
This Court in several judgments has stated and reiterated the
importance of a forwarding note and its evidentiary value in proving the
link between the sample alleged to have been collected from the
accused at the time of occurrence of the offence and its production
before the Court and the forwarding of such sample to the chemical
examiner who has to receive it in tamper proof condition. [see Ravi V.
State of Kerala [2018 (5) KHC 352] ; Smithesh v. State of Kerala
[2019 (2) KLT 974] ; Prakasan and another v. State of Kerala
[2016 KHC 96]
In the light of the law laid down by this Court and on the facts of
the case, the judgment dated 10.05.2006 in SC.No.94/2005 on the file
of the Court of Additional Sessions Judge (Adhoc -I), Ernakulam is set
aside. The accused is acquitted and set at liberty. Bail bonds if any
executed by the appellant or on his behalf are cancelled. The appeal
stands allowed.
Ranjith vs State Of Kerala on 30 November, 2021
8. This Court in Smithesh v. State of Kerala (2019 (2)
KLT 974) has held that the forwarding note must contain the
specimen of the seal affixed on the sample. The forwarding note
Crl.Appeal No.1503/2006
-:5:-
is the link evidence to show that it was the same sample which
was drawn from the contraband seized from the accused had
eventually reached the chemical analysis laboratory by change of
hands in a tamper proof condition. In the absence of seal in the
forwarding note, it cannot not be found that the prosecution has
proved beyond reasonable doubt that the very same sample
taken at the spot of occurrence had reached the chemical
examiner for analysis in a tamper proof condition.