IMPORTANT POINTS
The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.

JUDGMENT :

1. The appellant is the accused in the case S.C.No.436/2003 on the file of the Court of Session, Thalassery. The appeal is filed assailing the conviction entered and sentence passed against him under Section 8(1) read with 8(2) of the Abkari Act, 1077.

2. The prosecution case is that on 26.02.2002, at about 16.30 hours, PW2 Sub Inspector found the appellant at a public place at Sivapuram with a can containing two litres of arrack. PW2 Sub Inspector took two samples of liquid from the can and seized the can containing arrack and the samples as per Ext.P1 mahazar and arrested the appellant at the spot.

3. The appellant pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act. The prosecution examined PW1 to PW3 and marked Exts.P1 to P7 and MO1. No evidence was adduced by the appellant. The trial court found the appellant guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo simple imprisonment for a period of one month.

4. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records.

5. PW2 is the Sub Inspector who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW1 is the independent witness examined by the prosecution. He has supported the prosecution case. His evidence, more or less, corroborates the testimony of PW2 on the material particulars of the occurrence.

6. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of a can containing liquid from the possession of the appellant. There is nothing to show that PW2 had falsely implicated the appellant in a case of this nature. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of the can containing liquid from the possession of the appellant.

7. However, seizure of a can containing some liquid from the possession of the appellant does not prove the offence under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act against him. Conviction of the appellant in the case is possible only on proof that the liquid contained in the can was arrack or some other liquor.

8. Ext.P6 is the certificate of chemical analysis conducted in respect of the samples of liquid which were sent for analysis. Ext.P6 certificate shows that the samples of liquid contained ethyl alcohol.

9. Learned counsel for the appellant contended that there is doubt as to whether the very same samples of the liquid taken by PW2 at the spot were produced before the court and sent for chemical analysis and therefore, there is no assurance that Ext.P6 certificate relates to the liquid seized from the can seized from the possession of the appellant. Learned counsel also contended that the can and the samples were produced before the court only on 17.05.2002 and there was inordinate delay in producing the properties in the court.

10. Per contra, learned Public Prosecutor contended that there was strike by the government employees for a long period and it was the reason for the delay in producing the properties before the court. Learned Public Prosecutor would contend that there is nothing to suspect that the samples were tampered with by any person and therefore, there can be no doubt with regard to the fact that Ext.P6 certificate of chemical analysis relates to the liquid contained in the can seized from the possession of the appellant.

11. Ext.P4 is the property list prepared by PW2 for production of the properties before the court. It shows that the can and the samples were produced in the court only on 17.05.2002. The occurrence was on 26.02.2002. There was delay of more than two months and three weeks