1. The appellant was convicted by the court below under Sections 55(a) and 8(2) of the Abkari Act. However, the appellant was sentenced by the
court below only under Section 8(2) of the Abkari Act and no separate sentence was awarded under Section 55(a) of the Abkari Act.
2. The prosecution allegation is that on 17.03.2003 at about 6.00 p.m., the appellant was found in possession of 750 ml of arrack in contravention of
the provisions of the Abkari Act.
3. Heard.
4. The learned Counsel for the appellant has argued that since no forwarding note was produced or marked in this case, the appellant is entitled to
benefit of doubt.
5. It appears that no forwarding note was produced or marked in this case.
6. 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 appellantâ€.
7. 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.
8. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the
laboratory. Therefore, 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 appellant is entitled to benefit of
doubt.
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.
