The absence of a sample seal on the forwarding note is sufficient to undermine the prosecution's case under the Abkari Act.

JUDGMENT

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

2.The prosecution allegation is that on

01.07.2002 at about 5.00 p.m., the appellants were found in possession of 13 packets of arrack, each packet having a capacity of 100 ml each, in contravention of the provisions of the Abkari Act .

3. Heard.

4. The learned counsel for the appellants has argued that since no sample seal was affixed on the copy of the forwarding note, the appellants are entitled to be acquitted.

5. The learned counsel for the appellants relied on the decision of this Court in Krishnan H. v. State [ 2015(1) KHC 822 ] to support his argument.

6. In Krishnan (supra), the Court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient to presume that the sample seal was not provided in the original Forwarding Note.

7. Ext.P7 is the copy of the forwarding note which does not contain the sample seal at the space provided for the same or at any other place. In this case, no evidence was adduced by the prosecution to prove that the sample seal was affixed on the copy of the forwarding note.

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 the sample seal was not affixed on the the forwarding note, 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 to connect the appellants with the samples analysed in the laboratory. Consequently, the conviction and sentence passed by the court below relying on Ext.P8 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.