Point of law: That 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 corelated.

JUDGMENT :

This appeal is at the instance of the 1st accused in S.C No.623/2012 on the file of the Additional District & Sessions Judge-II, Pathanamthitta. The State of Kerala represented by the Public Prosecutor is arrayed as the sole respondent herein. The judgment in the above case convicting and sentencing the accused for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act is under challenge herein.

2. The precise allegation of the prosecution is that on 21.12.2004 at about 6.30 p.m the 1st and 2nd accused were found carrying 5 litre of arrack near Govt. L.P.School, Thekkekara, Perunadu Village against the prohibitions contained in the Kerala Abkari Act. Both of them were nabbed redhandedly. Thereafter, crime registered alleging commission of offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act. On completing investigation, charge laid before the Judicial First Class Magistrate Court-I, Ranni. The learned Magistrate committed the case to the Sessions Court for trial and disposal. Later this case was made over to Additional Sessions Judge-II, Pathanamthitta for trial and disposal.

3. The trial court, after framing charge, recorded evidence in this matter. The evidence consists of PW1 to PW4, Exts.P1 to P8 and MO1 on the side of the prosecution. Thondy Clerk was examined as court witness (CW1).

4. Though the accused were given opportunity to adduce defence evidence after questioning them under Section 313(1)(b) of Cr.P.C, no defence evidence was adduced.

5. The learned Sessions Judge heard the matter and finally convicted and sentenced accused No.1 as under:

The accused is sentenced to undergo R1 for 4 years and to pay a fine of Rs.1 Lakh in default to undergo SI for 3 months for the offence punishable u/s 8(1) r/w 8(2) of Abkari Act. A2 is acquitted u/s 235 Cr.P.C.

6. The above conviction and sentence are under challenge before this Court on multiple grounds.

7. Heard the learned counsel for the appellant Advocate Sri V.Philip Mathews and the learned Public Prosecutor Sri M.C.Ashi. Two technical grounds were argued by the learned counsel for the appellant to canvass acquittal. The learned counsel submitted that the Investigating Officer, who had drawn the sample from the accused, not given evidence as to the nature of seal affixed on the bottle containing the sample and the nature of seal used to affix in the seizure mahazar as well as the forwarding note. Therefore, the seizure itself is bad in law and as such conviction and sentence are liable to be set aside. Whereas the learned Public Prosecutor refuted this argument relying on the evidence of CW1 Thondy Clerk and PW4, the Investigating Officer.

8. While addressing this argument, I have perused the evidence of PW4, the Investigating Officer. PW4 generally supported the prosecution case in tune with the allegations regarding the arrest of accused 1 and 2 and consequential recovery. However, his deposition does not contain the relevant aspect as to whether who had drawn the sample, the nature of seal affixed on the bottle containing the sample and the nature of the seal affixed in the seizure mahazar as well as in the forwarding note.

9. It is settled by catena of decisions of this Court that the Detecting Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample, nature of the seal used to affix on the seizure mahazar, etc. Further the Detecting Officer should also produce the specimen of the seal before the court. Moreover the specimen of the seal shall be provided under seizure mahazar in the forwarding note so as to ensure tamper free collection and production of sample before the court for getting chemical analysis report. That apart, for ensuring that sample of contraband allegedly seized by the Investigating Officer from the accused had reached the Chemical Examiner for analysis, it has to be proved that seal affixed on the sample also is provided to the Chemical Examiner for compar