Kuttappan 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 23.7.2003 at about 5.45 p.m., the appellant was found in possession of eight 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 Ext.P8 copy of the forwarding note, the

appellant is entitled to benefit of doubt.

Ext.P6 is the property list, which would show that the property list was received by the court on 24.7.2003 itself. However, the endorsement on the

reverse side of Ext.P6 would show that the contraband and the sample were produced before the court only on 28.7.2003. This would give an

indication that the sample was not produced before the court on 24.7.2003, but the same was produced only on 28.7.2003 before the court. Ext.P8 is

the copy of the forwarding note, which would show that the forwarding note was prepared on 26.8.2003. It is not discernible as to how the forwarding

note could be prepared by the Excise Inspector when the contraband and the sample were in the court. It is clear that the forwarding note was not

sent to the court along with the contraband and the sample. That apart, the facsimile of the seal is not seen affixed on Ext.P8 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 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 allegedly seized from the accused ultimately reached the hands of the chemical examiner by

change of hands in a tamper proof condition.

In Krishnan H. v. State [2015(1) KHC 822], 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 to persume that the sample seal was not provided in the original Forwarding Note.

It appears that there is no convincing evidence with regard to the safe custody of the contraband and the sample from the date of seizure upto

28.7.2003. No evidence was adduced by the prosecution to prove that the sample seal was affixed on the original forwarding note. Since no sample

seal was affixed on the forwarding note, the tamper-proof despatch of the sample to the laboratory could not be ensured by the prosecution. 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 in a tamper â€" proof condition by change of hands. In the said

circumstances, the appellant is entitled to benefit of doubt.

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 court pursuant to the direction of this court, the appellant is entitled

to reimbursement of the said amount from the court concerned.