Balan vs State Of Kerala

The appellant was convicted and sentenced by the court below under Sections 8(2) and 55(a) of the Abkari Act.

The prosecution allegation is that on 23.10.2000 at about 4.15 p.m., the appellant was found in possession of 70 plastic covers of arrack, each

packet having a capacity of 150 ml each, in contravention of the provisions of the Abkari Act. The total quantity possessed by the appellant was 10.5

litres.

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

benefit of doubt.

It appears that no forwarding note was marked and proved in this case.

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.â€​

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 no forwarding note was marked and proved 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.

Therefore, there is no link evidence to connect the appellant with the sample anlaysed in the laboratory. Consequently, the appellant is entitled to

benefit of doubt.

There is yet another reason to grant benefit of doubt to the appellant. The incident in this case was on 23.10.2000. However, the contraband and

the sample were received before the court only on 27.10.2000. PW3 stated that the contraband and the sample were produced before the court on

27.10.2000. No reason was stated by PW3 for the delay in producing the contraband and the sample before the court. The delay as such is not always

fatal to the prosecution case. However, if the delay is not explained properly, the same is, no doubt, fatal to the prosecution case. In this case, there

was no explanation for the delay in producing the contraband and the sample before the court. Since there was no explanation for the delay from to

23.10.2000 to 27.10.2000 in producing the contraband and 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 also,

the appellant is entitled to benefit of doubt.

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.