IMPORTANT POINT
The absence of a specimen seal on the seizure mahazar creates reasonable doubt regarding the integrity of the evidence, leading to acquittal.

ORDER :

This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Judge, Fast Track No.II, Palakkad in Crl.A.No.446 of 2010.

2. The revision petitioners herein are accused Nos.1 and 2 in Crime No.43 of 2005 of Excise Range, Thrithala, registered for the offence punishable under Section 8(1) r/w Section 8(2) of the Abkari Act .

3. The prosecution case is that, on 09.12.2005 at about 6.00 p.m, the 1^st accused was found in possession of arrack in a Can having capacity of 5 litres and the 2^nd accused was found in possession of arrack in a plastic bottle having a capacity of 1½ litres on the northern side of pathway leading to Bharathapuzha Kadavu from Thrithala-Kumbidi Road in Koodallur and thereby allegedly committed the offence punishable under Section 8(1) r/w Section 8(2) of the Abkari Act .

4. The trial court convicted and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- each and in default, to undergo simple imprisonment for three months.

5. The appellate court, as per the impugned judgment, confirmed the conviction and modified and reduced the sentence to rigorous imprisonment for six months each and the fine imposed by the court below was confirmed. The default sentence is reduced to two months each.

6. Impugning the judgment of the learned Additional Sessions Judge, Palakkad, the accused preferred this revision.

7. Before the trial court, PWs.1 to 5 were examined, Exts.P1 to P10 were marked. PW1 is the Excise Inspector who detected the case. PW2 and PW3 are independent witnesses, who turned hostile to the prosecution. PW4 is the Excise Circle Inspector and PW5 is the other occurrence witness. The trial court, after a full fledged trial, convicted and sentenced the accused as aforesaid.

8. I have heard Adv.C.Seena, the learned Public Prosecutor and Adv.P.K.Mohanan, learned counsel appearing for the revision petitioners.

9. The learned counsel for the revision petitioners has mainly argued three points. The first submission by the learned counsel for the revision petitioners is that, Ext.P3 seizure mahazar does not contain the specimen impression of the seal and it does not state the description of the personal seal of the Detective Officer. He invited the attention of this Court's decision in Sugathan @ Kunjankilli v. State of Kerala [ 2023 KHC OnLine 9345 ]. The relevant portion of Sugathan's case (supra) which is extracted hereunder;

“8. Learned counsel would further contend that no specimen seal is affixed in the mahazar or in the forwarding note. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. This court in Vijayan v. State of Kerala , 2021 (5) KLT 321, has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In Nadarajan v. State of Kerala , 2020 (3) KLT OnLine 1030, it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note, there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by t