Bichamon @Nelson vs State Of Kerala

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

The prosecution allegation is that on 25-12-2000 at about 12.15 p.m., the appellant was found in possession of 7 litres of arrack for the purpose of

sale, in contravention of the provisions of the Abkari Act.

Heard.

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 be

acquitted.

It appears that no forwarding note was produced or marked in this case before the Court.

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€​

The Division Bench in Ravi v. State of Kerala [2011 (3) KLT 353] 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 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.

Consequently, there is no link evidence connecting the appellant with the sample analysed in the Laboratory. In the said circumstances, the conviction

and sentence passed by the court below relying on Ext. P5 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.

Needless to state that if the appellant had already deposited any amount before the trial court pursuant to the direction of this Court, the appellant is

entitled to re-imbursement of the said amount from the court concerned.