Point of Law: Conviction set aside - Prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence.

JUDGMENT :

K. Babu, J.

Challenge in this appeal is to the judgment dated 20-09-2006 passed by the learned Assistant Sessions Judge, Neyyattinkara in Sessions Case, S.C No.660/2004. The appellant (hereinafter referred to as 'the accused') was convicted of the offence under Section 8(1) read with 55(a) of the Abkari Act by the learned Assistant Sessions Judge.

2. The genesis of the case dates back to 10-08-1997. The accused was found in possession of 5 litres of illicit arrack in a jerry can at Nettathanni junction in Kottukal desom. He was arrested by the Excise Inspector, Neyyattinkara and the contraband substance was seized from his possession.

3. After completion of investigation on 03-04-2000 final report was submitted against the accused for the offence punishable under Section 8(1) read with 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-II, Neyyanttikara. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Assistant Sessions Court, Neyyattinkara. On appearance of the accused charge was framed against him for the offence punishable under Section 8(1) read with 55(a) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the Assistant Sessions Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P3 and MO1.

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 was evidence against the accused and hence he was called upon to enter on his defence and to adduce any evidence that he may have in support thereof. From the side of the defence DWs 1 and 2 were examined. The trial court, after hearing arguments addressed from both sides, passed the impugned judgment on 20-09-2006 convicting the accused under Section 8(1) read with 55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for a term of two years and to pay fine of Rs.1 Lakh.

6. The accused filed this appeal on 13-10-2006 which was admitted by this Court as early as on 16-10-2006. The matter was placed for hearing on 30-06-2021.

7. Heard Sri. R.T. Pradeep, learned counsel appearing for the accused and Sri. M.S. Breez, learned Senior Public Prosecutor appearing for the respondent.

8. The learned Public Prosecutor submitted that this appeal ought to have been filed before the Sessions Court under Section 374(3)(a) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The learned counsel for the accused submitted that in view of the prolonged pendency of the appeal this Court may proceed with the matter and decide the appeal on merits.

9. The present appeal challenging a sentence of imprisonment for a term of two years and to pay fine of Rs.1 Lakh passed by the learned Assistant Sessions Judge ought to have been instituted before the Sessions Court under Section 374 (3)(a) of the Code. As per Section 374 (2) of the Code the appeal challenging conviction on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court, in which sentence of imprisonment for more than seven years has been passed may appeal to the High Court.

10. The points that arise for consideration:

(i) Is it just and reasonable to relegate the accused to the Sessions Court by returning the appeal for presenting it before that court?

(ii) Whether the impugned judgment of conviction and sentence requires interference or not.

Point No.1:

11. The offence alleged against the accused was detected on 10-08-1997 by the Excise Inspector, Neyyattinkara (PW3). The investigating agency had taken more than two and half years to complete the investigation. Final report was submitted before the committal court on 03-04-2000. The trial commenced only on 18-07-2006, after a long lapse of more than s