In criminal trials, the burden of proof lies with the prosecution, and failure to produce essential evidence to support claims leads to acquittal.

JUDGMENT

Dated this the 9th day of April 2021 The accused in S.C.No.1892/2001 on the file of the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara has filed this appeal being aggrieved by the judgment dated 26.10.2006, whereby she has been found guilty of offence under Section 58 of the Abkari Act and convicted and sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of ₹1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 3 months.

2. The case of the prosecution is that on

12.08.2000 at about 12 noon, the Assistant Sub Inspector of Police, Malayinkeezhu Police Station received information that arrack was being sold by the accused and on enquiry, he found the accused in possession of a 5 litre black jerrycan filled with arrack and 1½ litre bottle containing 1 litre of arrack. Before the court below, the prosecution examined PW1 to PW7 and Exts.P1 to P6 were marked. On the basis of the evidence on record the court below found the accused guilty of offence, convicted her and imposed on her the sentence referred above.

3. Heard.

4. Even though several contentions have been taken in the memorandum of appeal, the appellant is entitled to succeed in this appeal for the sole reason that the forwarding note along with which the sample was forwarded to the Chemical Examiner has not been produced and marked in this case. This Court has held in Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KHC 455) and Sadasivan @ Para V. State of Kerala reported in (2020 KHC 478) that the failure to produce the forwarding note will lead to a situation where the Court cannot hold that the prosecution has proved beyond any reasonable doubt that the sample which was taken from the thondy articles had reached the Chemical Examiner in tamper proof condition.

5. On a perusal of the records, I find that the entire thondy articles which were produced before the court on 12.08.2000 were returned for safe custody to the Station House Officer, Malayinkeezhu Police Station on the same day. The Officer who detected the offence has not extracted any sample from the seized articles. There is nothing in evidence to show when exactly the sample was taken, how it was taken and the manner in which it was sealed. Even though the prosecution has examined the Thondy Clerk to show that the sample was taken by the Thondy Clerk on directions by the Magistrate, the deposition of the Thondy Clerk does not give any details regarding the manner in which the sample was taken. Ext.P6, which is the extract of the relevant pages of the thondy register also does not disclose such details except for stating that sample had been received for forwarding to the Chemical Examiner. It is not stated as to when the sample or the contraband articles were brought to the court again after 12.08.2000, the day on which it had been returned to the Station House Officer. In the absence of any evidence regarding the despatch of the sample, the taking of the sample from the thondy articles and the safe custody of the thondy articles and the sample, the accused is entitled to the benefit of doubt.

6. In the above circumstances, the appellant is entitled to succeed in this appeal. The judgment dated 26.10.2006 in S.C.No.1892/2001 on the file of the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on her behalf are cancelled.

This appeal stands allowed.