Unnikrishnan vs State Of Kerala

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

The prosecution allegation is that on 1.4.1999 at about 6 p.m., the appellant was found in possession of 25 litres of wash for the purpose of manufacturing 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 produced and marked in this case, the appellant is entitled to be acquitted.

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 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 or marked in this case, 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. Therefore, there is no link evidence to connect the appellant with the sample analysed in the laboratory and consequently, the appellant is entitled to be acquitted.

There is yet another reason to acquit the accused. The seizure in this case was effected on 1.4.1999. However, the contraband and the sample were produced before the court only on 10.4.1999. PW5 produced the contraband and the sample before the court. No explanation was given by PW5 for the delay in producing the contraband and the sample before the court. The evidence of PW5 would also show that there is no evidence with regard to the safe custody of the contraband and the sample till their production before the court. The delay as such is not always fatal to the prosecution case. However, unexplained delay is, no doubt, fatal to the prosecution case. Since there was unexplained delay from 1.4.1999 to 10.4.1999 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, particularly when there is no evidence with regard to the safe custody of the sample till its production before the court. In the said circumstances, there is no satisfactory link evidence to connect the appellant with the sample analysed in the laboratory. Consequently, the appellant is entitled to be acquitted on this ground as well.

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.