Point of Law: Contraband - Conviction set aside - No satisfactory link evidence to show that it was the same sample which was drawn from contraband seized from appellant, which eventually reached hands of chemical examiner by change of hands in a tamper – proof condition

JUDGMENT :

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

2. The prosecution allegation is that on 16.7.1998 at about 6.30 a.m., the appellant was found in possession of three litres of arrack, in contravention of the provisions of the Abkari Act.

3. Heard.

4. It has been argued that since there was inordinate delay in producing the contraband and the sample before the court, the appellant is entitled to benefit of doubt.

5. PW3 produced the contraband and the sample before the court on 31.7.1998. Ext.P9 is the property list, which would show that the contraband and the sample were produced before the court only on 31.7.1998. No explanation had been given by PW3 for the delay in producing the contraband and the sample before the court. There is also no evidence with regard to the safe custody of the contraband and the sample till their production before the court. The delay as such, is not always fatal to the prosecution case. However, unexplained delay is, no doubt, fatal to the prosecution case. In this case, since there was long and unexplained delay from 16.7.1998 to 31.7.1998 in producing the contraband and the sample before the court, it cannot be said that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly when there is no evidence with regard to the safe custody of the sample till its production before the court. In the said circumstances, the appellant is entitled to benefit of doubt.

6. There is yet another reason to grant benefit of doubt to the appellant. It appears that no forwarding note was produced and marked in this case.

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. In the said circumstances, 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 also, the appellant is entitled to benefit of doubt.

10. The court below did not consider the above aspects while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the court below cannot be sustained.

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.