Case BriefsHigh Courts

Madhya Pradesh High Court: Bechu Kurian Thomas, J., allowed the instant appeal against the impugned order of Additional Sessions Court, whereby the Sessions Court had held the appellant guilty for the offence under Sections 8(2) and 55(a) of the Abkari Act.

On 17-07-2001, the accused was found in possession of 700 ml of arrack for sale in a hotel name “Santhosh” ran by him. The contraband was seized and the crime was registered under Sections 8(2) and 55(a) of the Abkari Act against the accused. Thereafter, the Sessions Court convicted the accused and sentenced him with imprisonment for one year and a fine of Rs 1,00,000, in default of which rigorous imprisonment for three months was awarded.

Counsel for the appellant, T. Madhu submitted that the prosecution case suffered from a fatal flaw as no forwarding note had been produced in evidence. Also, there was unexplained delay in producing the contraband alleged to be seized from the accused which suggested a further flaw, thereby, entitling the accused for acquittal.

The respondent stoutly opposed abovementioned contentions and submitted that in the instant case, the contentions raised had no bearing.

The Court observed that though the date of arrest of the accused and the date of seizure of the contraband was 17-07-2001, the contraband was produced before the Court only on 23-07-2001 after the delay of six days. The prosecution had not explained the delay in production of the contraband before the Court nor had they explained as to who was in custody of the contraband during the said period. It had been deposed by the prosecution that there was no hurdle in producing the contraband before the court. Therefore, the abovementioned irregularities had created doubt on the veracity of prosecution case. The Court cited Gopalan v. State of Kerala, 2016 (3) KLT SN 24, wherein it was held that in the absence of the forwarding note, the prosecution had failed to establish the link connecting the accused with the contraband seized and the sample analysed. The absence of the forwarding note is undoubtedly fatal to the prosecution case. Since in the instant case, the prosecution had not produced the forwarding note, the prosecution had failed to prove the guilt of the accused and accordingly the accused was held entitled to be acquitted.

In the view of above, the Court set aside the impugned judgment. [Sivadasan Pillai v. State of Kerala, CRL.A.No.642 of 2007, decided on 21-12-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. set aside the judgment of the trial court and pronounced the appellant/ accused being not guilty.

In the present case, the appellant appealed against his conviction by the trial court for possessing a can containing ten litres of arrack (distilled alcoholic drink). He was found guilty and accordingly punished according to Section 58 of the Abkari Act.

The Court did not agree with the verdict of the lower court on certain factual and procedural grounds:

  1. Discrepancy in the evidence by various witnesses regarding the cans seized being found in a sealed condition or not.
  2. Undue assumption by the lower court that the liquid sample drawn for analysis was taken by the court.
  3. Further, there is no proof shown that the sample in question was actually the one seized from the appellant/ accused.
  4. Moreover, there was no forwarding note marked in evidence which could cogently prove if the sample was drawn from the cans possessed by the appellant/ accused.

The Court emphasised on the fact that in the absence of a forwarding note marked in evidence, it cannot be found that the prosecution had beyond reasonable doubts proved that the very same sample of liquid taken from the very same can seized from the possession of the accused had reached the chemical examiner for analysis in a tamper-proof condition.

The Court relied on Vijay Pandey v. State of U.P., 2019 SCC OnLine SC 942, wherein it was held that mere production of a laboratory report that sample tested was the contraband substance cannot be conclusive evidence. Sample seized and that tested have to be co-related.

The Court held that the absence of the forwarding note in evidence would mean the absence of evidence connecting the sample tested in the laboratory and the sample allegedly drawn from the liquid seized from the possession of the accused.[Rajendran v. State of Kerala, 2020 SCC OnLine Ker 3139, decided on 10-08-2020]