Koman vs State Of Kerala

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

under Section 8(2) of the Abkari Act. No separate sentence was awarded under Section 55(a) of the Abkari Act.

The prosecution allegation is that on 27.10.2003 at about 5.30 p.m., the appellant was found in possession of 750ml of arrack, in contravention of the

provisions of the Abakari 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 and marked 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 produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the

laboratory. Therefore, there is no 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. In the said circumstances, there is no

link evidence connecting the appellant with the sample analysed 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 27.10.2003. However, the final report was

filed before the court only on 02.04.2005. The Court in Krishnan H. v. State [2015 (1) KHC 822] held that the delay in conducting the investigation, in

the absence of any explanation is fatal to the prosecution. In this case, no explanation was given for the delay in conducting the investigation and filing

the final report before the court. Since there was unexplained delay from 27.10.2003 to 02.04.2005 in conducting the investigation and filing the final

report before the court, the appellant is, no doubt, entitled to benefit of doubt, particularly when the quantity of contraband involved in this case is only

750 ml.

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.