JUDGMENT :

JOHNSON JOHN, J.

1. Accused Nos. 1 and 2 in S.C. No. 860 of 2003 on the file of the Additional District and Sessions Judge, Fast Track (Ad-hoc), Mavelikkara, preferred this appeal challenging the conviction and sentence imposed on them for the offences punishable under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act.

2. The appellants are convicted and sentenced to undergo rigorous imprisonment for a period of 3½ years each and to pay a fine of Rs. 1,00,000/- each for the offences punishable under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act and in default to pay the fine, to undergo rigorous imprisonment for a further period one year each.

3. The prosecution case is that on 09.07.2002, at 1.20 hours, the accused persons were found transporting 35 litres of spirit in car bearing registration No. KL-4H/2244 through the PIP canal road at Kollakadavu. The Sub Inspector of Police, Venmony Police Station, intercepted the vehicle and arrested the accused persons and after completing the investigation, final report was filed against the accused persons alleging commission of offences punishable under Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act before the Judicial First Class Magistrate-II, Chengannur.

4. The learned Magistrate committed the case to the Sessions Court, Alappuzha for trial and disposal and later, the case was made over to Assistant Sessions Court, Mavelikkara and thereafter transferred to the Additional District and Sessions Judge, Fast Track (Ad-hoc), Mavelikkara.

5. The trial court, after framing charges, examined PW-s 1 to 6 and marked Exhibits P1 to P11 and MOs 1 and 2 from the side of the prosecution. From the side of the defence, DW-1 was examined.

6. After trial and after hearing both sides, the trial court found the accused persons guilty of the offences punishable under Sections 8(1) and (2) and 55(a) of the Abkari Act and imposed the sentence as aforesaid.

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

8. The learned counsel for the appellants pointed out that the Sub Inspector of Police, who detected the case and conducted investigation, has not given evidence as to the nature of the seal affixed on the contraband alleged to be recovered and the sample bottles and in Exhibit P1 mahazar also, the specimen impression of the seal used is not affixed and further, there is also nothing in the mahazar regarding the nature of the seal used.

9. The learned counsel for the appellants pointed out that specimen seal impression is not there in Exhibit P7 property list and that there is also delay in forwarding samples to the chemical laboratory.

10. A perusal of the evidence of PW-6, the Sub Inspector who detected the offence and conducted the investigation, shows that even though he deposed regarding the occurrence in tune with the prosecution case, his deposition does not contain the relevant aspects regarding the nature of the seal used when he had drawn sample from the contraband seized. In Exhibit P7 property list also, the specimen impression of the seal used is not affixed.

11. It is well settled that the Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample and also regarding the nature of the seal used to affix on the seizure mahazar. The Detecting Officer is further required to produce the specimen impression of the seal used before court and he is also required to affix the specimen impression of the seal in the seizure mahazar and property list so as to enable proper comparison to ensure tamper free collection and production of sample before court and the chemical laboratory.

12. This Court has also held in Sasidharan vs. State of Kerala, 2007 (1) KLT 720 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 c