Radhakrishnan 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 04.06.2001 at about 11.45 p.m., the appellant was found in possession of 1 litre of arrack and a pot full of wash

for manufacturing arrack, in contravention of the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since there was long and unexplained delay in producing the samples before the court, the

appellant is entitled to benefit of doubt.

It appears that PW5 produced the samples before the the court. PW5 stated that the samples were produced before the court on 16.08.2001.

Ext.P3 is the property list which would also show that the samples were produced before the court only on 16.08.2001. PW1 stated that he produced

the samples before the court on 05.06.2001. However, it was not accepted by the court. Thereafter, he produced it before the court on 16.08.2001.

However, Ext.P3 does not contain any endorsement to the effect that the samples were produced before the court on 05.06.2001 as stated by PW5.

No other document was also produced by PW5 to show that the property was produced before the court on 5.06.2001 as stated by PW5. In the

absence of any document or endorsement on Ext.P3 property list, it is not safe to accept the oral testimony of PW5 in this regard. Therefore, it has to

be held that there was unexplained delay from 04.06.2001 to 16.08.2001 in producing the samples before the court. Since there was long and

unexplained delay in producing the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed

in the laboratory were the samples drawn from the contraband seized from the appellant. 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. The forwarding note was not marked before the court. However, the

forwarding note is available with the records transmitted to this Court, which does not contain the facsimile of the seal at the space provided for the

same or at any other place.

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.

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 for presuming that the sample seal was not affixed on the original forwarding note.

In this case, no sample seal is seen affixed on the copy of the forwarding note. 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 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. In the said

circumstances also, the appellant is entitled to benefit of doubt.

The above aspects were not considered by the court below while appreciating the evidence. In the circumstances, the conviction and sentence

passed by the court below cannot be sustained.

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.