IMPORTANT POINT
The central legal point established in the judgment is the necessity for the prosecution to establish the genuineness of the seized sample and the clear link connecting the accused with the contraband substance in accordance with procedural requirements.

JUDGMENT :

K. BABU, J.

1. Crl. Appeal No. 1258 of 2007 Dated this the 15th day of January, 2024 Aggrieved by the judgment dated 27.06.2007 passed by the Additional Sessions Court, Fast Track (Ad hoc), Mavelikkara in Sessions Case No. 456 of 2003, the accused have preferred this appeal. The appellants were convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs. One Lakh.

2. The prosecution case is that on 10.09.2001 at 05.30 p.m. the accused were found to have stored 40 litres of wash at their house bearing No. X/115 of Palamel Village in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences.

4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MO1.

5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. Ext. D1 was marked on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 8(2) and 55(g) of the Abkari Act and convicted him thereunder.

6. Heard Sri. R. Padmakumar, the learned counsel appearing for the appellants/accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellants challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

8. The learned counsel relied on the following circumstances to substantiate his contentions:

(i) The seizure mahazar does not contain the specimen seal used at the place of occurrence.

(ii) There is no evidence to show that the forwarding note which contains specimen seal was forwarded to the Chemical Examiner‘s Laboratory for verification to ensure the genuineness of the sample.

(iii) Though the sample was forwarded to the laboratory on 14.09.2001 it reached the laboratory on 18.09.2001.

9. The alleged seizure was effected on 10.09.2001. The Detecting Officer prepared Ext.P3 seizure mahazar at the scene of occurrence. I have gone through Ext.P3. Ext.P3 does not contain the specimen of the seal used by the Detecting Officer.

10. The forwarding note prepared by the Investigating Officer requesting to send the sample for chemical examination has not been marked.

11. It is seen from Ext.P7 Certificate of Chemical Analysis that the sample was forwarded as per letter dated 14.09.2001 of the Judicial Magistrate of First Class, Mavelikkara. Ext.P7 further shows that the sample reached the laboratory only on 18.09.2001. An excise guard by name Shri. Sadasivan Pillai delivered the sample in the laboratory. Shri. Sadasaivan Pillai has not been examined as a witness. The property clerk, the custodian of the sample has also not been examined as a witness.

12. In Bhaskaran vs. State of Kerala, 2020 KHC 5296, this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuine