Thankachan @ Francis 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 26.10.2000 at about 1.10 p.m., the appellant was found in possession of five litres of arrack, in contravention of

the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since no forwarding note was marked and proved in this case, the appellant is entitled to

benefit of doubt.

It appears that no forwarding note was marked and proved 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.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 marked and proved in this case, the prosecution could not establish the tamper â€" proof despatch of the sample to

the laboratory. In the said circumstances, 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 â€" proof

condition. Consequently, there is no link evidence connecting the appellant with the sample analysed in the laboratory. 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. Ext.P3 is the property list, which would show that the contraband and the

sample were produced before the court only on 19.12.2000, even though the incident in this case was on 26.10.2000. PW4 produced the contraband

and the sample before the court. PW4 stated that he produced the contraband and the sample before the court along with the appellant. However,

Ext.P3 does not contain any endorsement to the effect that the contraband and the sample were produced before the court along with the appellant as

stated by PW4. There is also no other material to indicate that the contraband and the sample were produced before the court along with the appellant

as stated by PW4. In the absence of any document or any endorsement on Ext.P3 property list in this regard, it is not safe to rely on the oral testimony

of PW4 that the contraband and the sample were produced before the court along with the appellant. Thus from the available evidence, it has to be

held that the contraband and the sample were produced before the court only on 19.12.2000. However, there is no explanation for the delay in

producing the contraband and the sample before the court. Since there was no explanation for the delay from 2610.2000 to 19.12.2000 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. Consequently, there is no link evidence connecting the appellant with

the sample analysed in the laboratory. In the said circumstances 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.