Point of Law: Conviction set aside - Prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused.

JUDGMENT :

Challenge in this appeal is to the judgment dated 13.10.2006, passed by the Additional Sessions Judge (Adhoc) II, Thodupuzha, in S.C.No.364/2004. By the impugned judgment, the appellant/accused has been convicted of the offence punishable under Section 55(g) of the Abkari Act.

2. The prosecution case is that on 15.8.2002, at 6.45 pm., the accused was found in possession of 5 litres of wash in his house bearing No.UP 1/560 situated at Udumpannoor. The Sub Inspector of Police, Karimannoor Police Station detected the offence.

3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court I, Thodupuzha. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court (Adhoc) II, Thodupuzha. On appearance of the accused, charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.

4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P10 and MOs1 to 4.

5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. Ext.D1 was marked from the side of the accused. The learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 55(g) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of three months and to pay a fine of Rs.1,00,000/-.

6. Heard Sri. S. Rajeev, the learned counsel appearing for the accused and Sri. M.C. Ashi, the learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the accused canvassed the following grounds to challenge the judgment of conviction:

(a) The prosecution failed to establish the identity of the person, who was in possession of the contraband substance at the place of occurrence.

(b) The exclusive possession of the contraband substance by the accused has not been established by the prosecution.

(c) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of Analyst at the Chemical Examiner's laboratory.

8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.

9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.

THE POINT

10. The detecting officer (PW3) gave evidence that on 15.8.2002, while he was on patrol duty, he got a reliable information that wash and other utensils for distilling arrack were kept in the residence of one Ayyappan, Thekkepurathu, Udumpannoor. PW3 prepared Ext.P9 search memorandum and proceeded to the house of Sri. Ayyappan. He searched the residence and recovered a steel vessel containing 5 litres of wash in the room on the southern side of the kitchen. A mud pot with holes fitted with a hose for the distillation of arrack was also found. The accused was available in the house. PW3 seized the contraband substance and other articles as per Ext.P1 seizure mahazar. The accused was arrested. Ext.P2 search list was prepared by PW3. He gave evidence that sample was collected from the wash seized and the residue was destroyed then and there. PW3 registered Crime No.152/2002, alleging offence punishable under Section 55(g) of the Abkari Act. PW1, an independent witness, gave evidence that th