Gopi 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 19.05.2005 at about 2.15 p.m., the appellant was found in possession of 2.750 litres of arrack in contravention

of the provisions of the Abkari Act.

Heard.

The learned Counsel for the appellant has argued that since the facsimile of the seal was not affixed on the copy of the forwarding note, the

appellant is entitled to benefit of doubt. The learned Counsel relied on the decision of this Court in Krishnan.H v. State [2015 (1) KHC 822] to support

his argument.

In Krishnan.H.(supra), 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 reason for presuming that the sample seal was not provided in the original Forwarding Note.

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 appellantâ€​.

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.

In this case, Ext.P6 is the copy of the forwarding note which does not contain the facsimile of the seal at the space provided for the same or at any

other place. No evidence was adduced by the prosecution to show that the sample seal was affixed on the original forwarding note. In the said

circumstances, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, the appellant

is no doubt, entitled to benefit of doubt.

There is yet another reason to grant benefit of doubt to the appellant. It is to be noted that even though the incident in this case was on 19.05.2005,

the final report was filed by the Investigating Officer only on 25.01.2007 after completing the investigation. In Krishnan.H. (Supra), the court held that

the long delay in conducting the investigation, in the absence of explanation, is fatal to the prosecution case. In this case, no explanation was given by

the prosecution for the delay from 19.05.2005 to 25.01.2007 in conducting the investigation and filing the final report. Therefore, the said delay is, no

doubt, fatal to the prosecution case, particularly when the quantity involved in this case is only 2.750 litres. In the said circumstances also, the appellant

is entitled to benefit of doubt.

The court below did not consider the above aspects while appreciating the evidence. In the said circumstances, the conviction and sentence passed by

the court below 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.