The prosecution must prove beyond reasonable doubt that the sample of contraband was collected and handled without tampering, and procedural irregularities can lead to acquittal.

JUDGMENT :

(A. BADHARUDEEN, J.)

The sole accused in S.C. No.848/2012 on the files of the Additional Sessions Court-II, Thalassery, has come up in appeal challenging the conviction and sentence imposed by the Sessions Judge as per the judgment dated 30.01.2014. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein.

2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.

3. In a nutshell, the prosecution case is that, at about 11.10 a.m. on 08.11.2011, the accused possessed 4.875 litres of Indian Made Foreign Liquor (‘IMFL’ for short hereafter) without the security label of the Kerala State Beverages Corporation near the bus waiting shelter in Kuthuparamba, against the prohibitions contained in the Kerala Abkari Act and thereby committed the offence punishable under Section 55(a) of the Kerala Abkari Act. The case was detected by the Excise Inspector, Excise Circle Office, Kuthuparamba and after investigation, Final Report filed alleging the said offence.

4. Initially, the case was committed to the Sessions Court, Thalassery and later made over to the Additional Sessions Court-II, Thalassery for hearing and disposal. After, framing charge for the offence under Sections 55(a) of the Kerala Abkari Act, the trial court recorded evidence and tried the matter. PWs 1 to 5 were examined and Exts.P1 to P9 and MO1 were marked on the side of the prosecution. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1) of Cr.P.C, he did not opt to adduce any defence evidence.

5. On appreciation of evidence, the trial court found that the appellant/accused is guilty for the offence punishable under Section 55(a) of the Kerala Abkari Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was sentenced to undergo simple imprisonment for a period of three months more.

6. While assailing the conviction and sentence imposed by the trial court, the learned counsel for the appellant/accused would submit that there is patent procedural irregularity in this matter, which would go to the root of the case, so that the accused would deserve acquittal. It is pointed out by the learned counsel for the appellant/accused that, as per the decision of this Court in Vijayan @ Puthoor Vijayan v. State of Kerala reported in [2021 (5) KHC 347 : 2021 (2) KLD 483 : 2021 KHC OnLine 595 : 2021 (5) KLT 321 : 2021 (4) KLJ 224 : 2021 KER 34088], this Court analyzed the steps to be followed by the Officer collecting the sample, Thondy Clerk, who is authorized to receive the thondy and also the measures to be ensured by the Chemical Examiner to ensure that sample collected from the contraband seized safely reached the hands of the Chemical Examiner for examination. According to the learned counsel for the appellant/accused, in the instant case, Condition No.ii to be followed by the officer collecting the sample as held in Vijayan @ Puthoor Vijayan’s case (supra) is not followed or complied. Apart from that, independent witnesses to the recovery mahazar also turned hostile to the prosecution. Since there is reluctance on the part of the officer in describing the nature of the specimen seal in the mahazar and affixing the specimen seal in the mahazar, there is nothing to ensure that the sample sent for chemical examination is the one recovered from the appellant/accused. Therefore, the appellant/accused would get the benefit of doubt and thereby the verdict of the trial court is liable to be reversed.

7. Although, the learned Public Prosecutor opposed interference in the verdict of the trial court, he is not able to justify the laxity pointed out by the learned counsel for the appellant/accused.

8. In view of the rival submissions, the