The prosecution must prove that contraband samples were collected and handled without tampering; failure to do so results in benefit of doubt for the accused.

JUDGMENT :

1. The sole accused in S.C. No.421/2012 on the files of the Additional Sessions Court-II, Thalassery, has come up in appeal challenging the conviction and sentence imposed by the learned Sessions Judge as per the judgment dated 07.08.2014. 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 05.25 p.m. on 21.10.2009, the accused was found in possession of 2.5 litre of Arrack infront of the shop situated near Kurumpamoozhi Junction of Kollamula 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 Excise Inspector, Ranny Range Office.

4. Initially, the case was committed to the Sessions Court and later made over to the Additional District and Sessions Court-II for hearing and disposal.

5. After, framing charge for the offence under Section 8(1) read with 8(2) of the Kerala Abkari Act, the trial court recorded evidence and tried the matter. PWs 1 to 6 were examined, Exts.P1 to P8 and MOs 1 to 3 were marked on the side of the prosecution. CW1 was examined as court witness and Ext.C1 was marked as court exhibit. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, he did not opt to adduce any defence evidence.

6. 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 three years 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.

7. 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, 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. It is pointed out by the learned counsel for the appellant/accused that, even though in Ext.P1 scene mahazar, the specimen seal of the Investigating Officer was affixed, the same is not legible and in Ext.P1, the Detecting Officer not described the nature of the specimen seal and also not deposed about the same. Therefore, 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, PWs 1 and 2, the independent witnesses to Ext.P1 scene mahazar turned hostile to the prosecution and their statements were recorded after two years from the date of occurrence. The same also is fatal to the prosecution. Since there is reluctance on the part of the officer in describing the nature of 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