IMPORTANT POINT
The prosecution must establish the chain of custody for contraband from seizure to laboratory analysis; failure to do so undermines the evidentiary value of chemical analysis reports.

JUDGMENT :

K. Babu, J.

1. Aggrieved by the judgment dated 08.05.2009, passed by the Additional District and Sessions Court, Adhoc-III, N. Paravur, in Sessions Case No. 349/2008, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 23.08.2005, at 10.30 p.m. the appellant was found dealing with 30 litres of illicit arrack at Chendamangalam in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the trial court for the aforesaid offence.

4. The prosecution examined PWs.1 to 6 and proved Exts.P1 to P13 and MO. I series.

5. After the closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial court convicted the appellant/accused for the aforesaid offence.

6. Heard Sri. B.H. Mansoor, the learned counsel appearing for the appellant/ accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the respondent.

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

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

(i) Exhibit P5 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.

(ii) The specimen of the seal was not produced before the court at the time of production of the properties including the sample.

(iii) Various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with.

9. The alleged seizure was effected on 23.08.2005. The detecting officer has prepared seizure mahazar at the scene of occurrence which is marked as Ext.P5. Ext.P5 seizure mahazar does not contain the nature and description of the seal stated to have been used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. No material has been placed before the Court to show that the specimen seal was produced before the Court so as to enable the Court to ascertain the genuineness of the sample produced.

10. There is nothing to show that the specimen of the seal was forwarded to the laboratory to ensure the genuineness of the sample produced for examination. In Exhibit P11 forwarding note, the space meant for mentioning the specimen of the seal is left blank. The sample remained in the custody of the property clerk. It was delivered in the laboratory on 19.10.2005 by an Excise Guard by name A.B. Sajeev Kumar. The property clerk and the Excise guard were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution.

11. The crux of the offences under the Abkari Act, by its very nature, is the seizure of t