1. The accused in SC No. 199/2009 on the files of the Assistant Sessions Court, Hosdurg filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 58 of the Abkari Act.

2. Heard.

3. The prosecution case is that on 24.7.2007 at 5 p.m. the petitioner was found in possession of two liters of illicit arrack in a 5 litre can in contravention of the provisions of the Abkari Act.

4. PW3 seized the contraband article as per Ext.P1 seizure mahazar. He had also drawn the sample from the contraband. PW3 also arrested the revision petitioner from the spot and thereafter, he had taken the revision petitioner and the contraband to the Excise Office along with the contemporary records and thereafter, he registered the crime. The investigation was conducted by PW2. After completing the investigation, PW2 filed the final report before the Court.

5. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P12 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner.

6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. vs. State of Kerala, 2015 (1) KHC 822, to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.

7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamp