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:
- Discrepancy in the evidence by various witnesses regarding the cans seized being found in a sealed condition or not.
- Undue assumption by the lower court that the liquid sample drawn for analysis was taken by the court.
- Further, there is no proof shown that the sample in question was actually the one seized from the appellant/ accused.
- 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]