Murukan And Ors vs State Of Kerala

The appellants were convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

The prosecution allegation is that on 9.6.2003 at about 8.45 p.m., the appellants were found engaged in manufacturing arrack using wash, in contravention of the provisions of the Abkari Act. Five litres of arrack was seized from the appellants.

Heard.

The learned counsel for the appellants has argued that since no forwarding note was produced and marked in this case, the appellants are entitled to be acquitted.

It appears that no forwarding note was produced and 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 and marked in this case, the prosecution could not establish the tamper - proof despatch of the samples to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that the same samples which were drawn from the contraband seized from the appellants, which eventually reached the hands of the chemical examiner by change of hands in a tamper - proof condition. In the said circumstances, there is no link evidence connecting the appellants with the samples analysed in the laboratory. Consequently, the conviction and sentence passed by the court below on the basis of Ext.P9 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 appellants stand acquitted. The bail bonds of the appellants stand discharged.

Needless to state that if the appellants had already deposited any amount before the trial court pursuant to the direction of this court, the appellants are entitled to reimbursement of the said amount from the court concerned.