Shihabudeen vs State Of Kerala

The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

The prosecution allegation is that on 13.10.2000 at about 8.30 p.m., the appellant was found in possession of 20 packets of arrack, each packet

having a capacity of 100 ml each, in contravention of the provisions of the Abkari Act.

The learned counsel for the appellant is no more, submitted at the Bar. No alternative arrangement has been made by the appellant. In the said

circumstances, this Court has appointed Adv.P.S.Appu 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 before the court.

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 produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the

laboratory. Therefore, 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. In the said

circumstances, the conviction and sentence passed by the court below on the basis of Ext.P4 certificate of chemical analysis cannot be sustained.

In the result, this 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.