Allowed

Yasodha v. State of Kerala

Kerala HC17 Jul 2019CRL.A/889/2005

Case brief

AI extract

What is this about?

The High Court of Kerala acquitted the appellant in a criminal appeal challenging conviction for possession of arrack. The court held that the prosecution failed to establish tamper-proof sampling and laboratory analysis due to non-examination of the thondi clerk and absence of a forwarding note.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond discharged.

Yasodha Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941

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CRL.A.No.889 of 2005

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AGAINST THE ORDER/JUDGMENT IN SC 76/2001 of ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM DATED 04-05-2005

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APPELLANT/S/ACCUSED:

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YASODHA D/O AMMU, KARINJAVAYAL VEEDU, KADINAMKULAM MURI, KADINAMKULAM PAKUTHY.

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BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.KRISHNADAS P. NAIR SRI.M.JAYAKUMAR (MUTHUKULAM) SRI.PRABHU VIJAYAKUMAR

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RESPONDENT/S/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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SRI.E.C.BINEESH,PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No.889 of 2005

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JUDGMENT

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The appellant was convicted and sentenced by the court

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below under Section 55(a) of the Abkari Act.

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The prosecution allegation is that on 09.01.1998 at about 9.00 a.m., the appellant was found in possession of 10 litres of arrack in contravention of the provisions of the

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Abkari Act.

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Heard.

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The learned Counsel for the appellant has argued

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that since there is no evidence with regard to the drawing of the sample and sending the same to the laboratory, the appellant is entitled to benefit of doubt.

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PW1 was the Excise Range Inspector, who detected

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the offence. The evidence of PW1 would show that he seized

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CRL.A.No.889 of 2005

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the contraband as such at the place of occurrence and sealed the same. The evidence of PW2 would also corroborate with

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the evidence of PW1 that the contraband as such was seized and sealed at the spot. Even though the property list was not marked, the property list is available with the records of the court. The said property list would show that about 10 litre of arrack in a can having a capacity of 10 litre was produced before the court by the Excise Inspector.

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Ext.P7 is the certificate of chemical analysis, which

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would show that one sealed bottle containing 375 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 of Kerala [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

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CRL.A.No.889 of 2005

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sending the same in a sealed packet to the chemical examiner with the specimen seal sent separately for tamper-proof despatch, the prosecution cannot be held to have brought home the offence against the accused.

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In this case, the thondi clerk, who had drawn the

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sample from the contraband was not examined before the court. Therefore, there is no evidence with regard to the drawing of the sample and sending the same to the laboratory in a tamper-proof manner. No forwarding note was also produced and marked in this case. For the above said reasons, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Consequently, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, there is no link evidence connecting the

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CRL.A.No.889 of 2005

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appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below relying on Ext.P7 certificate of chemical analysis cannot be sustained.

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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.

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Sd/-

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B.SUDHEENDRA KUMAR

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JUDGE

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RK/17.07.2019

Yasodha v. State of Kerala

Case brief

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What did the court decide?

Yasodha v. State of Kerala

Case brief

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