JUDGMENT

Dated this the 9th day of April 2021 The accused in S.C.No.512/2001 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 17.02.2007, whereby he 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 4 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 6 months.

2. The case of the prosecution is that on

22.11.1999 at about 1.30 p.m., the Excise Inspector of Amaravila Excise Range while on patrol duty found the accused in possession of 15 litres of arrack in a 35 litre white jerrycan on his shoulder. Before the court below, the prosecution examined PW1 to PW6 and Exts.P1 to P7 were marked. On the basis of the evidence on record, the court below found the accused guilty of offence, convicted him and imposed on him the sentence referred above.

3. Heard Sri.Blaze K. Jose, learned counsel on behalf of the appellant and Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the respondent.

4. The learned counsel for the appellant contended that the appellant is entitled to succeed for the sole reason that the prosecution has not produced, proved and marked the forwarding note in this case. It is further submitted that there is no evidence forthcoming regarding the manner in which the sample was taken, the day on which the sample was taken and the manner in which the sample was sealed. Coupled with the fact that the forwarding note has not been produced, it is not possible to arrive at a finding that the sample which was taken from the thondy articles had reached the Chemical Examiner in a tamper proof condition.

5. I find considerable force in the argument advanced by the learned counsel for the appellant. This Court has held in Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KHC 455) and Sadasiva n @ Para V. State of Kerala reported in (2020 KHC 478) that failure to produce the forwarding note will lead to a situation where it cannot be held that the prosecution has proved beyond any reasonable doubt that the very same sample which was taken at the spot of occurrence had reached the Chemical Examiner for analysis in a tamper proof condition. In the case on hand, admittedly, the sample was not extracted at the time of detection of the offence. The entire contraband articles were produced before the Court on 22.11.1999 and on the very same day it was returned for safe custody to the Excise Range Office. There is no evidence regarding the manner in which the thondy articles were kept in safe custody. It is not stated as to when exactly the thondy articles were again brought to the Court for taking of the sample. Even though the Thondy Clerk was examined there is nothing stated by him regarding the above aspect. All what he has stated is that he had taken sample on directions by the Magistrate. This Court has held that it is not proper for the court to take sample and it is primarily the duty of the Investigating Officer. Even if the above said impropriety is ignored, the fact remains that there is nothing to show the despatch of the sample, which is stated to have been collected by the Thondy Clerk and the same reaching the Chemical Examiner in tamper proof condition. There is also nothing in evidence to show that the thondy articles were again produced before the court for the purpose of taking sample. In the above circumstances, the appellant is entitled to the benefit of doubt and to succeed in this appeal.

6. The judgment dated 17.02.2007 in S.C.No.512/2001 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 his behalf are cancelled.

This appeal stands allowed.