IMPORTANT POINTS
When there is delay in producing the samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved at the police station –Held:- There is no evidence adduced by the prosecution to show as to how and in what conditions the samples were kept at the police station during the period of nearly four months till they were produced in the court.

ORDER :

In the wee hours of the morning on 04.10.1998, at the place Odanavattam, the Inspector of Police, Kottarakara seized 1435 litres of spirit, which was being transported in the lorry KL-02/E-7176. The spirit was kept in 41 cans. The driver of the lorry and two other persons who were travelling in it escaped from the spot. The police party could not obstruct the car which was escorting the lorry and apprehend the persons who were in the car. The police party apprehended the petitioner who had got down from the cabin of the lorry.

2. The driver of the lorry and three other persons, who were allegedly travelling in the lorry and the car, were subsequently arrested. Along with them, the petitioner figured as the first accused in the case S.C.No.10/2000 and he faced trial for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, 1077 before the Assistant Sessions Judge, Kottarakkara.

3. The prosecution examined PW1 to PW7 and marked Ext.P1 to P10 documents. No evidence was adduced by the accused.

4. Learned Assistant Sessions Judge found the petitioner only, the first accused in the case, guilty of the offence punishable under Section 55(a) of the Abkari Act only and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo rigorous imprisonment for a period of one year.

5. The petitioner filed Crl.A.No.26/2005 before the Court of Session, Kollam challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal.

6. Concurrent verdicts of guilty, conviction and sentence made against him by the courts below are assailed in revision by the first accused.

7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

8. PW1 is the Inspector of Police who detected the offence. He has given evidence regarding the occurrence in detail. PW2 was the driver of the police jeep and PW3 and PW4 were the police constables in the police party led by PW1. Their evidence more or less corroborates the testimony of PW1 with regard to the material particulars of the occurrence. As usual, PW5 and PW6, the independent witnesses examined by the prosecution did not support the prosecution case.

9. Ext.P9 is the chemical examination report received in respect of the samples which were sent for analysis. It shows that the 41 samples of liquid which were sent for analysis contained ethyl alcohol and the samples were rectified spirit.

10. Learned counsel for the petitioner pointed out that there was inordinate delay in producing the samples before the court and that the reason for the delay has not been explained by the detecting officer or the investigating officer. Learned counsel has contended that the unexplained delay in producing the samples before the court creates reasonable doubt as to the veracity of the prosecution case and the evidentiary value of Ext.P9 chemical analysis report.

11. The 41 cans containing spirit, allegedly seized from the lorry, were never produced before the court. They were initially kept in the police station. Subsequently, Ext.P8 order was passed by the learned Magistrate for producing the cans containing the spirit before the Assistant Excise Commissioner, Kollam. There is no evidence to find that the investigating officer had complied with Ext.P8 order.

12. The occurrence was in the early hours of the morning on 04.10.1998. The evidence of PW1 and the recitals in Ext.P1 seizure mahazar would show that PW1 had taken samples of liquid from all the 41 cans and sealed the sample bottles at the spot of the occurrence. PW7 Sub Inspector, who conducted the investigation of the case, has given evidence that the samples were produced in the court on 01.02.1999. He has testified that there was no specific reason for the ino