The prosecution must establish the integrity of seized samples and their journey to the chemical examiner in a tamper-proof condition to secure a conviction for alleged offences.

V. Ramkumar

1. In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C. No. 787/2001 on the file of the Addl. Sessions Judge, Fast Track Court (Adhoc) No. I, Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for an offences punishable under Section 55 (a) of the Abkari Act.

2. The case of the prosecution is that on 15-05-1998 at 5 p.m. while the Excise Preventive Officer (P.W.5) attached to the Excise Office, Kazhakuttom was proceeding on patrol duty along the Panachamoodu-Murukkumpuzhakadavu road they came across the accused carrying a black plastic can having a capacity of 2 litres containing two litres of illicit arrack and that the accused has thereby committed offences punishable under Sections 8(1) and 58 of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against him by the court below for an offence punishable under CRL. APPEAL NO. 1128 OF 2006 Section 55(a) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 5 documents as Exts. P1 to 5 and one material objects as Mo 1.

4. After the close of the prosecution evidence the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He submitted before Court that he was running a mobile tea stall in the Murukkumpuzhakadavu and was falsely implicated in this case on account of the enmity between his family and that of P.W.5.

5. Since the trial court did not consider this a fit case for recording an order of acquittal under Section 232 Cr.P.C., the accused was called upon to enter on his defence and to adduce any evidence which he might have in support thereof. The accused did not adduce any defence evidence.

6. The learned Addl. Sessions Judge, after trial, as per judgment dated 13-2-2006 found the appellant guilty of the offences charged against him and sentenced him to undergo rigorous imprisonment for 1 years and to pay a fine of Rs. 1,00,000/- and CRL. APPEAL NO. 1128 OF 2006 on default to pay the fine, to suffer rigorous imprisonment for a further period of six months. It is the said judgment which is assailed in this appeal by the sole accused.

7. I heard Advocate Sri. Liju V. Stephen, the learned counsel who defended the appellant on State Brief and Advocate Sri. Sivakumar, the learned Public Prosecutor who defended the State.

8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ?

THE POINT:

9. P.Ws 1 and 6 are the two independent witnesses to the arrest, search and seizure. Both of them turned hostile to the prosecution. While P.W.1 admitted the signature in Ext.P1 contemporaneous mahazar prepared by the detecting officer, P.W.6 denied his signature appearing thereon. P.W.2 is the Excise Guard who accompanied the the detecting officer. P.W.3 who was the Excise Inspector of Kazhakkoottam Excise Range, registered Ext.P2 report. P.W.4 is the successor in office of P.W.3 and it was P.W.4 who filed final report before court. Ext.P3 Chemical Examination report dated 19-06-1999 to the effect that the sample in question contained 13.26 percent by volume of Ethyl Alcohol was proved through CRL. APPEAL NO. 1128 OF 2006 -:4:- P.W.4.

10. After hearing both sides and after bestowing my anxious consideration to the oral and documentary evidence, I am not satisfied that the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt.

11. It is true that P.Ws.1 and 6 who are the independent witnesses to the arrest, search and seizure turned unfriendly to the prosecution. But that does not in any way affect the core of the prosecution ca