Surendran vs State Of Kerala

The appellant was convicted and sentenced by the court below under Section 58 of the Abkari Act.

The prosecution allegation is that on 31.08.2004 at about 8.30 p.m., the appellant was found in possession of one litre and 375 ml of coloured arrack

in contravention of the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since no sample seal was affixed on the copy of the forwarding note, the appellant is entitled

to benefit of doubt.

Ext.P7 is the copy of the forwarding note, 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 in a tamper- proof condition.

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. Therefore, the

prosecution could not establish the tamper-proof despatch of the samples to the laboratory. In the said circumstances, 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 in a tamper-proof condition. In the said circumstances, the appellant is entitled to benefit of doubt.

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.