Important points:
The use of reports of government scientific experts in trial, the evidentiary value of such a report received as per Section 293 Cr.P.C. will depend upon two conditions; (1) the sample should be duly sent for chemical examination, and (2) the report should be obtained in the course of any proceeding under the Code.

JUDGMENT :

Appellant was found guilty of possessing arrack. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-in default to undergo simple imprisonment for two years for the offence punishable under Section 8(1) and (2) of the Kerala Abkari Act [for short, 'the Act']. He challenges his conviction and sentence.

2. The prosecution case was that on 22.11.2001, the Sub Inspector of Police, Pathanamthitta Police Station received information that the accused was engaged in the sale of arrack at Vazhamuttam. On the basis of the aforesaid information, when the appellant proceeded towards the place, they found the accused sitting on a culvert on the side of vallikode-Vazhamuttam public road in possession of a black can having 5 litres capacity, containing two litres of arrack in it and holding a glass containing smell and sediments of arrack. The prosecution alleged that possession of liquor without authority being a contravention of Section 8(1), the accused had committed the offence punishable under Section 8(2) of the Act.

3. In order to prove the prosecution case, PWs 1 to 5 were examined and Exts.P1 to P8 were marked while material objects like the black can and the glass were marked as Exts.MO1 and MO2. Five witnesses were examined as PWs 1 to 5. After analysing the facts and evidence in the case, the Sessions Judge found that the prosecution succeeded in proving that the accused was in possession of two litres of arrack and accordingly found him guilty and sentenced him to undergo the sentence mentioned earlier.

4. The learned counsel for the appellant Sri.V.Sethunath attacked the judgment of the Sessions Court and contended that the prosecution had miserably failed in establishing possession of illicit arrack with the appellant so as to warrant a finding of guilt under Section 8 of the Act. He further contended that seizure of the alleged contraband article from a public place, without any direct proof of possession with the appellant coupled with the absence of independent witnesses ought to have led the Sessions Court to discard the evidence of the prosecution. The learned counsel also vehemently contended that non-mention in the mahazar of the seal affixed on MO1 and the failure to mark before the court the alleged forwarding note on the basis of which MO1 was sent for analysis to the Forensic Science Laboratory, clearly erodes the credibility of the prosecution case. He relies upon the decisions in Krishnan H v. State [2015 (1) KHC 822] and Prakashan and Another v. State of Kerala [2016 (1) KHC SN 40] and contended that the prosecution case is not worthy of belief and the accused is entitled to be acquitted.

5. Smt.Maya M.N., the learned Public Prosecutor contended that the possession of the can with the accused was proved through PWs 1, 3 and 5 and that though the forwarding note is not marked in evidence, PW5 had clearly spoken to the sending of the sample along with the forwarding note, the original of which was kept in the case diary but omitted to be marked. She urges this Court to dismiss the appeal and submits that the impugned judgment is well considered and does not warrant any interference.

6. Section 8(1) and (2) of the Act reads thus :

S.8(1). Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc. of arrack – No person shall manufacture, import, export [without permit transit] possess, store, distribute, bottle or sell arrack in any form.

(2) If any person contravenes any provisions of subsection (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.

A reading of the said section will evince that the possession of arrack is made punishable with imprisonment up to 10 years and with fine which shall be not less than Rs.1,00,000/-.

7. PW1, who was the Police Constable attached to the Pathanamthitta Police Station, deposed in chief examinatio