Devasia @Kutty vs State Of Kerala

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

The prosecution allegation is that on 23.12.2002 at about 5.15 p.m., the appellant was found in possession of 10 litres of spirit, 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.

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."

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 conviction and sentence passed by the court below relying on Ext.P5 certificate of chemical analysis, cannot be sustained.

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.