Martin Joseph vs State Of Kerala

The revision petitioner was convicted and sentenced by the courts below under Section 55(g) of the Abkari Act.

The prosecution allegation is that on 19.09.2007 at about 4.30 p.m., the revision petitioner was found in possession of apparatus used for

manufacturing arrack and also 25 litres of wash, in contravention of the provisions of the Abkari Act.

Heard.

The learned counsel for the revision petitioner has argued that since no forwarding note was marked and proved in this case, the revision petitioner

is entitled to benefit of doubt.

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.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 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 revision petitioner, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof

condition. Consequently, there is no link evidence to connect the revision petitioner with the sample analysed in the laboratory. In the said

circumstances, the conviction and sentence passed by the courts below on the basis of Ext.P5 certificate of chemical analysis cannot be sustained.

In the result, this criminal revision petition stands allowed, setting aside the conviction and sentence passed by the courts below and the revision

petitioner stands acquitted. The bail bond of the revision petitioner stands discharged.

Needless to state that if the revision petitioner had already deposited any amount before the court pursuant to the direction of this Court, the revision

petitioner is entitled to reimbursement of the said amount from the court concerned.