Prabhu vs State Of Kerala

The appellant was convicted by the court below under Sections 55(a) and (i) of the Abkari Act. However, the sentence was awarded only under

Section 55(a) and no separate sentence was awarded under Section 55(i) of the Abkari Act.

The prosecution case is that on 20.08.2000 at about 9 p.m., the appellant was found in possession of 1.25 litres of arrack for the purpose of sale, in

contravention of the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since there was unexplained delay in producing the contraband and the sample before the

court, the appellant is entitled to benefit of doubt.

It appears that the incident in this case was on 20.08.2000. Ext.P5 property list would show that the contraband and the sample were received by

the court only on 30.08.2000. PW6 produced the contraband and the sample before the court. PW6 stated that there was no specific reason for the

delay in producing the contraband and the sample before the court. There is also no evidence with regard to the safe custody of the contraband and

the sample till their production before the court. It is not discernible as to why the contraband and the sample could not be produced before the court

along with the accused, particularly when the quantity of contraband involved in this case was only 1.25 litre. The delay as such is not always fatal to

the prosecution case. However, if the delay is not properly explained, the same is, no doubt, fatal to the prosecution case. In this case, since there was

unexplained delay from 20.08.2000 to 30.08.2000 in producing the contraband and the sample before the court, there cannot be any guarantee that the

sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly

when there is no evidence with regard to the safe custody of the sample till its production before the court. In the said circumstances, the appellant is

entitled to benefit of doubt.

There is yet another reason to grant benefit of doubt to the appellant. It appears that Ext.P6, the copy of the forwarding note, does not contain the

facsimile of the seal at the space provided for the same or at any other place. The Court in Krishnan H. v. State [2015 (1) KHC 822] 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 affixed on the original forwarding note. In this case, 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.

Consequently, 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 by change of hands in a tamper-proof condition. Therefore, there is no link

evidence to connect the appellant with the sample analysed in the laboratory. In the said circumstance also, 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.