Legal requirements for tamper-proof collection and handling of samples from contraband liquor are essential for establishing guilt under relevant sections of the Abkari Act.

JUDGMENT :

The appellant, who is the accused in S.C. No. 856 of 2003 on the file of Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara, is challenging the conviction and sentence imposed on him for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act.

2. As per the impugned judgment dated 15.10.2007, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- for the offence punishable under Sections 8(1) and (2) of the Kerala Abkari Act.

3. The prosecution case is that on 17.12.1999, at 12.10. p.m., the accused was found in possession of 500 ml. of illicit arrack in a plastic can on the side of the road at Budhanoor Kurisummoodu junction.

4. The offence was detected by the Excise Inspector and party while on patrol duty and after completing investigation, a final report was filed before Judicial First Class Magistrate-II, Chengannur. Thereafter, the case was committed to the Court of Sessions, Alappuzha and subsequently made over to the Assistant Sessions Court, Mavelikkara. Thereafter, it was transferred to the Fast Track Court, Mavelikkara.

5. The trial court, after framing charge, examined PWs 1 to 6 and marked MOs 1 and 2 from the side of prosecution and no evidence was adduced from the side of the accused.

6. After trial and after hearing both sides, the court below found the accused guilty of the offence punishable under Sections 8(1) r/w Section 8(2) of the Kerala Abkari Act and imposed the sentence as aforesaid.

7. Heard the learned counsel for the appellant Sri. C.A. Rajeev and the learned Public Prosecutor, Smt. Nima Jacob.

8. The learned counsel for the appellant submitted that PW2, the Excise Inspector who detected the offence and prepared Exhibit P1 mahazar, failed to affix the specimen impression of the sample seal in the mahazar and further there is also nothing in the mahazar to disclose the nature of the sample seal used by him to seal the samples drawn from the contraband alleged to have recovered. It is further pointed out that even though, the properties are mentioned as item Nos. 1 to 3 in Exhibit P4 occurrence report, it is not stated that the said items are sealed. In Exhibit P5 property list also, nothing is mentioned to show that item Nos. 1 to 3 produced before court on 20.12.1999 are in a sealed condition and no specimen seal impression is there in Exhibit P5.

9. The learned counsel for the appellant also pointed out that as per Exhibit P1 mahazar, the glass recovered is that of 150 ml. capacity; but, as per Exhibits P4 and P5, the glass recovered is that of 200 ml. capacity. A perusal of the evidence of PW5 in cross examination shows that the glass which he recovered is that of 180 ml. capacity.

10. The learned counsel for the appellant pointed out that the prosecution has not produced or marked a copy of the forwarding note and that Exhibit P7 certificate of chemical analysis will show that the date on which the sample was forwarded from the court is not there in the certificate and the certificate only shows that the sample was received in the laboratory on 04.01.2000. It is also pointed out that even though Exhibit P5 property list is seen prepared on 17.12.1999, the court seal will show that the same reached the court only on 20.12.1999 and no explanation is forthcoming from the side of prosecution regarding the said delay.

11. In Sasidharan v. State of Kerala [2007(1) KLT 720], this Court held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition, unless the link evidence of actual sampling and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellant.

12. It is well settled that the