IMPORTANT POINT
The prosecution must prove the integrity of the sample and the chain of custody to sustain a conviction under the Kerala Abkari Act.

ORDER :

The revision petitioner is challenging the judgment rendered by the Additional District and Sessions Judge (Adhoc)- I, Pathanamthitta in Crl. Appeal No. 98 of 2012 upholding the verdict of the Assistant Sessions Judge, Thiruvalla in S.C. No. 59 of 2011, wherein the petitioner is convicted and sentenced for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act.

2. The prosecution case is that the petitioner, along with the second accused, was found in possession of 5 litres of arrack in a 10 litre can for the purpose of sale near M.J Plywood factory near Venkotta-Kunnathanam road at about 6 p.m. on 01.06.2006.

3. The trial court framed charge against the accused for the offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act.

The accused pleaded not guilty and the prosecution examined PWs 1 to 7 and marked Exhibits P1 to P10 and MOs 1 to 4 series. From the side of the accused, DW1 examined and Exhibit D1 marked.

4. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months.

5. The accused filed Crl. Appeal No. 98 of 2012 before the Court of Sessions, Pathanamthitta. The appellate court confirmed the conviction, but, reduced the sentence to rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months. Aggrieved by the findings of the trial court and the appellate court, the accused filed this revision petition.

6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor and perused the records.

7. The learned counsel for the revision petitioner argued that PW2, Excise Circle Inspector who detected the case and prepared the mahazar, failed to affix the specimen impression of the seal used in the contemporaneous mahazar, property list and in the forwarding note. PW2 has also not deposed regarding the nature of the seal affixed on the bottle containing the sample and the can containing the remaining liquor and in this case, there is no evidence as to how and when the sample was produced before the court. The sample said to be taken by PW2 at the time of occurrence is not among the properties produced as per Exhibit P6, property list, and therefore, there is no assurance that the very same sample drawn at the spot of the occurrence by PW2 was forwarded for analysis.

8. PW2, Circle Inspector who detected the case, has given evidence regarding the occurrence in accordance with Exhibit P1 mahazar. PW1 is an Excise Inspector who was present along with PW2 and his evidence also corroborates the evidence of PW2 regarding the occurrence. PWs 3 and 4 are independent witnesses examined from the side of the prosecution. But, they turned hostile to the prosecution and deposed that they have not witnessed the occurrence.

9. PW5 was the Excise Range Inspector of Mallappally who registered Exhibit P4 crime and occurrence report. The evidence of PW5 shows that he also prepared Exhibit P6, property list, and Exhibit P7, forwarding note. The chemical analysis report is marked as Exhibit P8 and it shows that ethyl alcohol was detected in the sample.

10. PW6 was the Excise Range Inspector of Mallapally who completed the investigation and filed the final report. The property clerk of the Judicial First Class Magistrate Court, Thiruvalla is examined as PW7 and the certified copy of the entry in the property register is marked as Exhibit P9.

11. PW7 admitted that the sample in Excise Crime No. 15 of 2006 of Mallapally is not mentioned in Exhibit P9. But, he would say that usually the sample will be produced along with the forwarding note and in this case, the sample is forwarded for analysis and the signature of the Excise Gu