Udayakumar @Kochukunju 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 10.03.2003 at about 10.50 a.m., the appellant was found in possession of three litres of 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 be acquitted.

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 to infer that the sample seal was not provided in the original Forwarding Note.

Ext.P7 is the copy of the forwarding note which does not contain the sample seal at the space provided for the same. No evidence was also adduced by the prosecution to prove that the sample seal was affixed on the original forwarding note. Therefore, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory.

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 the sample seal was not affixed on the copy of the forwarding note, the prosecution could not establish the tamper-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 - proof condition. In the said circumstances, there is no link evidence to connect the appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below relying on Ext.P8 Certificate of Chemical Analysis, 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.