IMPORTANT POINT
Procedural integrity in evidence collection is crucial for upholding convictions under the Abkari Act.

JUDGMENT :

JOBIN SEBASTIAN, J.

The sole accused in S.C.No.229/2013, on the file of Additional Sessions Court-IV, Kottayam has preferred this appeal challenging the judgment of conviction and order of sentence passed against him in the said case for an offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act.

2. The prosecution allegation in brief is that, on 10.03.2012, at 11.30 p.m., the accused possessed 10 litres of arrack in a white plastic can and transported it in an autorickshaw bearing Registration No.KL37/6213 for the purpose of sale in violation of the provisions of the Abkari Act and thereby committed an offence punishable under Section 8(2) r/w 8(1) of the Abkari Act.

3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-I, Kanjirappally. On being satisfied that the said case is one exclusively triable by a court of session, the learned Magistrate, after complying with all legal formalities, committed the case to the Sessions Division, Kottayam, under Section 209 of Cr.PC. The learned Session Judge, after taking cognizance made over the case to the Additional Sessions Court-IV, Kottayam, for trial and disposal. On appearance of the accused before the trial court, the learned Session Judge, after hearing both sides under Section 227 of Cr.P.C. and perusing the records, framed a written charge against the accused for an offense punishable under Section 8(2) r/w 8(1) of the Abkari Act. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.

4. The prosecution is bid to prove the charge levelled against the accused as altogether examined six witnesses as PW1 to PW6, and marked Exts.P1 to P13 and MO-1 and MO-2.

5. After the completion of prosecution evidence, when the accused was questioned under Section 313 Cr.P.C., he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was called upon to enter on his defence and adduce any evidence he may have in support thereof. From the side of the accused, one witness was examined as DW1.

6. After trial, the accused was found guilty of the offence punishable under section 8(2) r/w 8(1) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1 Lakh. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months. Aggrieved by the said judgment of conviction and order of sentence passed, the present appeal has been preferred.

7. I heard learned counsel for the appellant and the learned Public Prosecutor.

8. The learned counsel for the appellant would submit that the case registered against the accused is a foisted one. According to the counsel, the detecting officer failed to follow the procedures relating to the sampling and sealing of the seized contraband scrupulously, leaving room for tampering. The counsel further urged that there is no sufficient link evidence to show that the sample drawn from the contraband at the time of detection is the one examined in the chemical examiner's laboratory. According to counsel, there is overwriting in the date of covering letter by which the forwarding note, along with the sample, was sent to the chemical examiners laboratory and that manipulation was committed with the sole intention to coverup the delay occurred between the date of entrustment of the sample by the court for production before the chemical examiners laboratory and the actual date of receipt of the sample at the chemical examiners labo