Point of Law: Mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated.

JUDGMENT :

Judgment in S.C.No.194/2009 on the file of the Additional Sessions Judge II, Kalpetta dated 22.04.2014 is under challenge in this appeal at the instance of the sole accused where State of Kerala is the respondent.

2. Briefly spelt, the prosecution case is that on 10.09.2008 at about 10.15 a.m the accused was found in possession of 3 litre of arrack while transporting the same in a can having capacity of 5 litre on the macadam road near Millumukku junction. The accused was arrested and the contraband was taken into custody. Thereafter alleging commission of offence under Section 8(1) read with 8(2) of the Abkari Act was registered and on investigation, final report filed before the Chief Judicial Magistrate, Kalpetta. Thereafter, the case was committed to the Court of Sessions and then made over to the Additional Sessions Court II, Kalpetta for trial and disposal.

3. The trial Judge after framing charge, tried the matter. PW1 to PW6 examined and Exts.P1 to P6 and MO1 were marked on the side of the prosecution.

4. Thereafter, the accused was examined under Section 313(1)(b) of Cr.P.C and the incriminating circumstances in the evidence were read over and explained to the accused. His explanation was recorded and opportunity was given to the accused to adduce defence evidence. But no defence evidence adduced.

5. After hearing both sides and appreciating the evidence, the learned Additional Sessions Judge convicted and sentenced the accused as under:

The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,00,000/-(Rupees One lakh only) under Section 8(2) of the Abkari Act, in default of payment of fine, accused shall undergo rigorous imprisonment for six months more. The accused is entitled to get set off under Section 428 of Cr.P.C.

6. While challenging the veracity of the judgment impugned, a serious anomaly in the matter of the sample collected is pointed by the learned counsel for the appellant/accused. It is submitted that as per the evidence of PW3, the Detecting Officer, the specimen sample collected was 200 ml of contraband and as per Ext.P8 chemical analysis report, it is stated that 300 ml of colourless liquid reached the laboratory. According to the learned counsel, this is a serious anomaly to disbelieve the prosecution case and the same would go to the root of the matter.

7. The learned Public Prosecutor attempted to justify this anomaly based on the explanation given by PW3 to the effect that the sample collected was approximate quantity and at the time of recovery no measuring vessel was available to measure the exact quantity. Therefore, this anomaly is of least significance, is the submission of the learned Public Prosecutor.

8. In view of the rival submissions, I have perused the evidence of PW3. PW3 given evidence that on 10.09.2008, he found the accused possessing the contraband. Thereafter, he was arrested as per Ext.P2 arrest memo. His evidence further is that 200 ml of arrack was collected as sample and after sealing and labelling, the same was forwarded to court for chemical examination. Apart from that, in Ext.P6 recovery mahazar it is specifically stated that approximately 200 ml of arrack was collected as sample. Thus the evidence given by PW3 is that the sample collected would come to 200 ml. However, Ext.P8 chemical analysis report pertaining to the sample produced for chemical examination would go to show that the sample reached at the hands of the chemical examiner was 300 ml instead of 200 ml. In fact, if the sample reached at the hands of the chemical examiner exceeds what has been collected by the detecting officer at the time of detection, there is every reason to doubt the genuineness of the sample collection and recovery of contraband. Similarly, in such situation it is difficult to lay down that the sample collected is the one reached at the hands of the Chemical Examiner. Therefore, this is a serious anomaly to doubt the prosecution case an