Vijaya Babu @Sadanandan 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 19.06.1999 at about 6 p.m., the appellant was found in possession of 750 ml 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 Ext.P2 copy of the forwarding note, the appellant is entitled to be acquitted.

The learned counsel for the appellant relied on the decision of this Court in Krishnan H. v. State [2015(1) KHC 822] to support his argument.

In Krishnan H (Supra), 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 presume that the sample seal was not provided in the original Forwarding Note.

PW5 had taken the sample. He produced the sample before the court along with the forwarding note. Ext.P2 is the copy of the forwarding note, which does not contain the sample of the seal affixed on the sample by PW5. No evidence was also adduced by the prosecution to prove that the sample seal was affixed on the copy of the forwarding note.

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 original 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. Consequently, there is no link evidence to connect the appellant with the sample analysed in the laboratory. In the said circumstances, the conviction and sentence passed by the court below relying on Ext.P5 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.