Raghavan S/O Thiruvanjan Panmmathil House vs State Of Kerala

The revision petitioner was convicted and sentenced by the courts below under Section 8(2) of the Abkari Act.

The prosecution allegation is that on 20.09.2002 at about 9 a.m., the revision petitioner was found in possession of 1.5 litres of arrack, 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 produced and marked in this case, the revision petitioner 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 appellant."

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.

Since no forwarding note was produced or marked before the Court, the prosecution could not establish the tamper - proof despatch of the sample to the laboratory. Consequently, there is no satisfactory link evidence to prove 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 in a tamper - proof condition. In the said circumstances, the conviction and sentence passed by the courts below on the basis of Ext.P4 Certificate of Chemical Analysis, cannot be sustained.

The courts below did not consider the above aspect while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained.

In the result, this 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 trial court pursuant to the direction of this court, the revision petitioner is entitled to reimbursement of the said amount from the court concerned.