Failure to comply with procedural safeguards in sample collection entitles the accused to benefit of doubt and results in acquittal.

JUDGMENT :

A. BADHARUDEEN, J.

The sole accused in S.C. No.535/2009 on the files of the Additional District and Sessions Court-II, Pathanamthitta, has come up in appeal, challenging the conviction and sentence imposed by the Additional District and Sessions Judge, as per the judgment dated 11.08.2014. 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 05.15 p.m. on 07.09.2008, the accused was found in possession of 1 Litre of illicit arrack in a rubber estate situated at Pothupara – Sannymukku in Koodal Village, against the prohibitions contained in the KERALA ABKARI ACT and thereby committed the offence punishable under Section 8(1) read with 8(2) of the KERALA ABKARI ACT . The case was charge sheeted by the Sub Inspector of Police, Koodal.

4. Initially, the case was committed to the Sessions Court and later made over to the Additional District and Sessions Court-II, Pathanamthitta for hearing and disposal. After, framing charge for the offence under Sections 8(1) read with 8(2) of the KERALA ABKARI ACT , the trial court recorded evidence and tried the matter. PWs 1 to 3 were examined and Exts.P1 to P7 and MOs 1 and 2 were marked on the side of the prosecution. CW1 was also examined as court witness. 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 8(1) read with 8(2) of the KERALA ABKARI ACT and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of one year 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 15 days more. Set off was allowed to the accused, as per law.

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. 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,