The High Court of Kerala allowed the criminal appeal, acquitting the appellant who was convicted under the Abkari Act. The court held that the prosecution failed to prove the sample was drawn and sent to the laboratory in a tamper-proof manner due to the non-examination of the thondy clerk.
Appellant acquitted; conviction and sentence set aside; bail bond discharged.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941
CRL.A.No.764 of 2006
AGAINST THE JUDGMENT IN SC 857/2000 of ADDITIONAL DISTRICT AND SESSIONS COURT FAST TRACK-III, TRIVANDRUM DATED 07-03-2006
AGAINST THE ORDER/JUDGMENT IN CP 92/2000 of JUDICIAL FIRST CLASS MAGISTRATE-I, ATTINGAL
APPELLANT/S:
SHAJI,
S/O. ANANDAN, KUNJUVILA VEEDU, MEVARKAL DESOM, ALAMCODE VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.M.R.RAJESH
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
OTHER PRESENT:
SRI.E.C.BINEESH,PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.A.764/2006
2
JUDGMENT
The appellant was convicted and sentenced by the court below under Section 8 (2) of the Abkari Act.
litres of arrack for the purpose of sale in contravention of the provisions of the Abkari Act.
since there is no evidence to prove the drawing of the sample and
sending the same to the laboratory, the appellant is entitled to
benefit of doubt.
sealed at the spot. Ext.P6 would show that a 5 litre can containing
Crl.A.764/2006
3
about 2½ litre of arrack was produced before the court. Ext.P8 is
the certificate of chemical analysis, which would show that one sealed bottle containing 150 ml of sample was received in the laboratory. This would show that the sample was drawn from the contraband after the production of the contraband before the court. This Court in Sasidharan v. State [2007 (1) KLT 720] held that without the link evidence of actual sampling by the concerned clerk of the court by drawing the 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 dispatch, the prosecution cannot be held to have brought home the offence against the appellant.
Crl.A.764/2006 4
sample to the laboratory. Therefore, there cannot be any
guarantee that the sample analysed in the laboratory was the
sample drawn from the contraband seized from the appellant. Since there is no evidence with regard to the drawing of the sample and sending the same to the laboratory in a tamper-proof manner, there is no link evidence connecting the appellant with the sample analyzed in the laboratory. In the said circumstances, there cannot be any conviction and sentence relying on Ext.P8 certificate of chemical analysis. Consequently, the conviction and sentence passed by the court below cannot be sustained.
Sd/-
B.SUDHEENDRA KUMAR
JUDGE
DG
2 issues framed by the court
Whether conviction under Section 8(2) of the Abkari Act can stand when no evidence proves the sample was drawn and sent to the laboratory in a tamper-proof manner.
Whether the absence of the thondy clerk who drew the sample creates a link in the prosecution evidence.
Colour shows how this judgement treated each authority
Sasidharan v. StateDistinguished¶28
Sasidharan v. State [2007 (1) KLT 720]
1 provisions across 1 enactments
Shaji
State of Kerala
B.Sudheendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
