Anandan vs State Of Kerala And Ors

The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

The prosecution allegation is that on 12.7.2004 at about 5.45 p.m., the appellant was found in possession of two litres of arrack, in contravention of

the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since no forwarding note was marked and proved in this case, the appellant is entitled to be

acquitted.

It appears that no forwarding note was marked and proved in this case. However, the copy of the forwarding note is available with the records

transmitted to this court, which would show that the sample seal was not affixed on the said forwarding note at the space provided for the same.

In Krishnan H. v. State [2015(1) KHC 822], the Court held that the absence of sample seal at the space provided for the same in the copy of the

Forwarding Note is sufficient to infer that the sample seal was not provided in the original Forwarding Note.

In this case, no evidence was adduced by the prosecution to indicate that the sample seal was affixed on the original forwarding note.

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 the hands of the chemical

examiner by change of hands in a tamper proof condition.

Since the sample seal was not affixed on the copy of the forwarding note, 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 â€" proof

condition. In the said circumstances, there is no link evidence to connect the appellant with the sample analysed in the laboratory. Consequently, the

conviction and sentence passed by the court below relying on Ext.P4 Certificate of Chemical Analysis, cannot be sustained.

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.