1. This revision petition is preferred by the accused against the judgment in Crl. Appeal No. 836 of 2002 of Additional Sessions Judge, North Paravur. He was charge sheeted in SC No. 226 of 2001 by the Additional Assistant Sessions Judge, North Paravur under Section 58 and 8(1) and (2) of the Abkari Act (for short ‘Act’). Learned Assistant Sessions Judge convicted the accused under Section 8(1) and 58 of the Abkari Act and sentenced to simple imprisonment for two years and fine of Rs. 1,00,000/- under Section 8(1) of the Abkari Act, no separate sentence was imposed under Section 58 of the Abkari Act. Against that, he preferred the above appeal, where learned Sessions Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition.

2. The charge against the accused was that on 18.10.1999, at 4.30 pm, the Excise Inspector, Angamaly was conducting patrol duty, accused was found in possession of two litres of arrack in a can in front of the chapel at Thavalappara on the Thavalappara-Pooppani public road. He was arrested and the contraband articles were seized by the Excise Inspector, reaching at the excise office, he entrusted the accused the contraband articles and seizure mahazar to the Excise Range office, Angamaly where they registered a crime. After completing investigation, Excise Inspector, Angamaly laid charge against the accused in the Judicial First Class Magistrate, Aluva. Subsequently, the case was committed to the Sessions Court, from there it was made over to the Additional Assistant Sessions Judge, North Paravur for trial. In pursuance of the trial, prosecution examined PW-1 to PW-4 and marked Ext.P1 to P7. MO1 was admitted as material object. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW-1 to DW-3 in support of his defence and marked Ext.D1.

3. Learned counsel appearing for the revision petitioner contended that sample was not taken by the detecting officer at the time of seizure of the contraband articles. No report was furnished by the Excise Inspector, Angamali to show that they had taken sample from the excise office. In the absence of such evidence, Ext.P6 chemical analysis report is not admissible in law for a conviction.

4. Learned Public Prosecutor submitted that the sample was forwarded to the chemical examiner’s lab through court by virtue of Ext.P5 forwarding note, hence Ext.P6 is a valid document. No circumstances are brought out in evidence to discard the evidences in Ext.P5 and P6 documents.

5. In an abkari case, it is the responsibility of the detecting officer to take sample from the place of seizure and prepare a seizure mahazar at the place of seizure itself. Taking of sample, sending prompt reports to the courts, proper preservation of samples in lawful custody and adducing proof of that custody ensure authenticity of the procedure in an abkari case. The illegalities committed by the prosecution while taking sample of opium and forwarding it to chemical examiner’s lab for analysis has been explained by the apex Court in State of Rajasthan vs. Doulat Ram, AIR 1980 SC 1314. Apex Court held that “where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody, the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question - a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under Section 9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.”

6. The evidence of PW-1 in this case shows that he seized two litres of arrack from the possession of the rev