Prosecution must establish a tamper-proof chain of custody for seized samples to prove its case beyond any shadow of doubt.

ORDER :

This revision is at the instance of the 1st accused in SC No.79 of 2011 on the file of Assistant Sessions Judge, Thiruvalla, assailing the judgment in Crl. Appeal No.152 of 2012 on the file of Additional District and Sessions Judge (Ad hoc) Court-I, Pathanamthitta, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act.

2. Prosecution case is that, on 01.07.2007, at about 8.25 a.m., the revision petitioner was found carrying a 5 litre black can containing 4.5 litres of illicit arrack, and the 2nd accused was found following him. PW1, the preventive officer, and excise party detected the offence. On seeing the excise party, the 2nd accused ran away, and so, he could not be arrested. PW1 arrested the revision petitioner, seized the contraband and prepared arrest memo, seizure mahazar etc. PW3 registered the crime, investigated the case and laid charge against the revision petitioner and the 2nd accused under Sections 8(1) and (2) of the Abkari Act. The 2nd accused was absconding and so, his case was split up and re-filed by the trial court.

3. The trial court framed charge against the revision petitioner under Section 8(1) and 8(2) of the Abkari Act. He pleaded not guilty and claimed to be tried. PWs 1 to 4 were examined, Exts.P1 to P9 were marked and M.O 1 was identified from the side of the prosecution. During 313 examination, the revision petitioner denied all the incriminating materials brought on record. DW1 was examined from his side.

4. On analysing the facts and evidence and also on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 lakh and in default, to undergo simple imprisonment for six months.

5. Against the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.152 of 2012, and the appellate court, on re-appreciating the facts and evidence, dismissed the appeal, upholding the conviction and sentence, against which this revision has been preferred.

6. Now this Court is called upon to verify the legality, propriety and correctness of the decision rendered by the courts below.

7. Heard learned counsel for the revision petitioner and learned Public Prosecutor.

8. Learned counsel for the revision petitioner is canvassing her arguments mainly based on the technical laches committed by the detecting officer as well as the investigating officer. First of all, learned counsel for the revision petitioner pointed out that, in Ext.P1 seizure mahazar, no sample seal was affixed, and if at all it is affixed, the nature of that seal is not mentioned anywhere.

9. Learned Public Prosecutor would say that, in the mahazar, the sample seal is affixed. But, on verification of the seizure mahazar, it could be seen that, a seal-like impression is found inside the writings and so, the abbreviation found in the seal is not legible. There was no difficulty for the detecting officer to affix the sample seal in the vacant space available beneath the mahazar. The detecting officer was Sri. P.R. Retnakaran. Normally, the specimen seal would be made of the abbreviated form of the name of the detecting officer. Here, the detecting officer is Sri. P.R. Retnakaran. So, normally, his specimen seal would have been ‘P.R.’. or ‘P.R.R.’. But, the specimen seal found inside the writings in the mahazar starts with the letter ‘R’ and the remaining letters are not legible. Normally, the nature of the specimen seal affixed, will find a place in the mahazar itself, and that also is absent in Ext.P1 mahazar. Since the specimen seal is not properly affixed, and the nature of seal is not mentioned in the mahazar, we have to take it as a case of no seal affixed in the mahazar. In the mahazar, the Excise Inspector has not affixed his signature towards his designation seal. That also casts ser