The prosecution must provide link evidence and ensure that the seizing officer is authorized under the Abkari Act.

JUDGMENT :

Bhaskaran Pillai Sudheendra Kumar, J.

1. The appellant was convicted and sentenced by the court below under Sections 55(a) and 8 (2) of the Abkari Act.

2. The prosecution case is that on 24.10.2000 at about 5.25 p.m., the appellant was found in possession of 2 litres 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, the appellant is entitled to be acquitted.

5. It has been further argued by the learned counsel for the appellant that since the Assistant Sub- Inspector of Police had detected the offence, seized the contraband and registered the crime, the appellant is entitled to be acquitted on that ground as well.

6. In this case, no forwarding note was produced or marked before the court.

7. 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."

8. 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.

9. 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. In the said circumstances, there is no link evidence to connect the appellant with Ext. P5 certificate of chemical analysis and consequently, the conviction and sentence passed by the court below cannot be sustained. In the said circumstances also, the appellant is entitled to be acquitted.

10. PW 4 was the Assistant Sub-Inspector of Police, who detected the offence, seized the contraband and registered the crime. The sampling was also done by PW 4. As per SRO No. 321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of Abkari Officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer as per SRO No. 321/96. The learned Public Prosecutor has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Act.

11. The Division Bench of this Court in Subhash v. State of Kerala [2008 (2) KLT 1047] held that Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Act. In the above case, the Division Bench directed the final report to be returned for re-presentation after curing the defects, if the trial was not commenced. In this case, since the Assistant Sub-Inspector of Police was not an Abkari Officer, the seizure effected and the registration of crime by PW 4 were without authorisation and jurisdiction and consequently, the conviction and sentence passed by the court below on the basis of the said seizure of the contraband and registration of the crime cannot be sustained. In the said circumstances also, the appellant is entitled to be acquitted.

In the result, this 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.