Moly 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 24.08.2003 at about 5.30 p.m., the appellant was found in possession of 6 packets of arrack, each packet

having a capacity of 300 ml each and 2 packets of arrack, each packet having a capacity of 100 ml each in contravention of the provisions of the

Abkari Act. The total quantity of the contraband possessed by the appellant was 2 litres of arrack.

Since there is no representation for the appellant, this court has appointed Adv. Lindons. C. Davis as Amicus Curiae to argue the case for the

appellant.

Heard the learned Amicus Curiae and the learned Public Prosecutor.

The learned Amicus Curiae has argued that since no forwarding note was produced or marked in this case, the appellant is entitled to benefit of

doubt.

It appears that no forwarding note was produced or 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 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.

Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the samples to

the laboratory. Therefore, there is no satisfactory link evidence to show that the same samples which were 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. Consequently, there is no

link evidence to connect the appellant with the samples analysed in the laboratory. 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.