Uthaman vs State Of Kerala

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

The prosecution allegation is that on 12.08.2000 at about 5.55 p.m., the appellant was found in possession of four 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- 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 anlaysed in the laboratory. Consequently, the appellant is entitled to

benefit of doubt.

There is yet another reason to grant benefit of doubt to the appellant. The incident in this case was on 12.08.2000. However, the contraband and

the sample were received before the court only on 29.08.2000 as per Ext.P4 property list. PW3 produced the contraband and the sample before the

court. PW3 stated that the contraband and the sample were produced before the court on the next day. However, Ext.P4 does not contain any

endorsement to the effect that the contraband and the sample were produced before the court on any day prior to 29.08.2000. In the absence of any

endorsement on Ext.P4 in this regard and in the absence of any other document to support the evidence of PW3, it is not safe to rely on the evidence

of PW3 to hold that PW3 produced the contraband and the sample before the court on 13.08.2000. In view of the above, there is no explanation for

the delay in producing the contraband and the sample before the court. Since there was unexplained delay from 12.08.2000 to 29.08.2000 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. In the said circumstances also, 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.