IMPORTANT POINT
The prosecution must establish a foolproof chain of custody and proper sampling procedures in drug-related cases; failure to do so results in acquittal.

JUDGMENT :

JOBIN SEBASTIAN, J.

1. The accused Nos. 1 and 2 in S.C.No.1204/2004, on the file of Additional District and Sessions Judge (Fast Track Court-I), Thiruvananthapuram, has preferred this appeal challenging the judgment of conviction and order of sentence passed against them for the offence punishable under Section 55 (a) of the Abkari Act.

2. The prosecution allegation in brief is that, on 07.01.2002, at 7.30 a.m., at Puthennada in Anchuthengu desom, the accused Nos. 1, 2 and 3 were found in possession of 10 litres of spirit in contravention of the provisions of the Abkari Act and thereby committed an offence punishable under Section 55 (a) of the Abkari Act.

3. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Varkala. Being satisfied that the case is one exclusively triable by a court of Session, the learned Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Thiruvananthapuram, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence made over the case to the Additional Sessions Court, Thiruvananthapuram for trial and disposal. On the appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for an offence punishable under Section 55 (a) of the Abkari Act . When the charge was read over and explained to the accused, all of them pleaded not guilty and claimed to be tried.

4. The prosecution in its bid to prove the charge levelled against the accused had altogether examined five witnesses as PW1 to PW5, and marked Exts.P1 to P9. MO1 and MO2 were identified and exhibited. Exts.X1 & X2 were marked as court exhibits. After the completion of prosecution evidence, the accused were questioned under Section 313 Cr.P.C., during which they denied all the incriminating materials brought out against them in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were called upon to enter on their defence and adduce any evidence they may have in support thereof. But no evidence, whatsoever, was adduced from the side of accused.

5. After trial, the third accused was found not guilty and acquitted. However, accused Nos.1 and 2 were found guilty of the offence punishable under section 55(a) of the Abkari Act , and they were convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh each. In default of payment of the fine, they were ordered to undergo simple imprisonment for a further period of one year. Assailing the said judgment of conviction and the order of sentence passed, the present appeal has been preferred.

6. I heard learned counsel for the appellants and the learned Public Prosecutor.

7. The learned counsel for the appellants submitted that the accused are innocent of the allegations levelled against them and that they were falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and they were implicated based on surmises and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of the spirit that got analyzed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, property list as well as in the forwarding note, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the argument of the learned counsel for the appellants is tha