Unexplained delay in producing contraband and samples can be fatal to the prosecution's case, and the absence of link evidence and tamper-proof despatch weakens the prosecution's ability to establish the accused's connection to the samples.

JUDGMENT :

Bhaskaran Pillai Sudheendra Kumar, J.

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

2. The prosecution allegation is that on 30.10.1997 at about 6.00 p.m., the appellant and the other accused persons were found in possession of a total quantity of 6 litres of arrack for the purpose of sale in contravention of the provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the appellant has argued that since there was long and unexplained delay in producing the contraband and the samples before the court, the appellant is entitled to be acquitted. It has been further argued by the learned Counsel for the appellant that since no forwarding note was produced or marked in this case, the appellant is entitled to be acquitted on that ground as well.

5. The incident in this case was on 30.10.1997. Ext. P3 property list would show that the contraband and the samples were produced before the court only on 04.12.1997. PW4 was the Circle Inspector of Police, who produced the contraband and the samples before the court. PW4 stated that the contraband and the samples were produced before the court only on 14.12.1997. However, no reason was stated by PW4 for the delay in producing the contraband and the samples before the court.

6. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to the prosecution case. In this case, since there was long and unexplained delay from 30.10.1997 to 04.12.1997 in producing the contraband and the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellant. Consequently, there is no satisfactory link evidence to connect the appellant with the samples analysed in the laboratory. In the said circumstances, the appellant is entitled to be acquitted.

7. No forwarding note was produced and marked in this case.

8. 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".

9. 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.

10. Since no forwarding note was marked and proved in this case, the prosecution could not establish the tamper-proof despatch of the samples to the laboratory. Therefore, there is no satisfactory link evidence to show that the same samples which were 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 samples analysed in the laboratory. In the said circumstances also, the appellant is entitled to be acquitted.

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.