Procedural missteps in seizure and inordinate delay in investigation render prosecution's case ineffective, warranting acquittal in cases under the ABKARI ACT.

JUDGMENT :

JOBIN SEBASTIAN, J.

The sole accused in S.C.No.1121 of 2012 on the file of the Additional Sessions Court-III, Kasargod, has preferred this appeal challenging the judgment of conviction and the order of sentence passed against him in the said case for an offence punishable under Section 55(a) of the ABKARI ACT .

2. The prosecution case allegation is that, on 22.12.2005, at 10.45 a.m., the accused was found possessing 23 packets of arrack, each containing 100 ml in a white polythene bag for the purpose of sale in violation of the provisions contained under the ABKARI ACT . Hence, the accused is alleged to have committed the offence punishable under Section 55(a) of the ABKARI ACT .

3. After completion of the investigation, the final report was submitted before the Judicial First Class Magistrate-I, Kasargod. On 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, Kasargod under Section 209 Cr.PC. The learned Sessions Judge, after taking cognizance, made over the case for trial and disposal to the Additional Sessions Judge-III, Kasargod. On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 Cr.PC. and perusal of 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, he pleaded not guilty and claimed to be tried.

4. From the side of the prosecution, four witnesses were examined as PW1 to PW4 and marked Exts.P1 to P13. After the completion of the prosecution evidence, when the accused was questioned under Section 313 Cr.PC., he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 Cr.PC, he was called upon to enter on his defence and adduce any evidence he may have in support thereof. However, no evidence whatsoever was adduced from the side of the accused. After trial, the accused was found guilty of the offence punishable under section 55(a) of the ABKARI ACT , and he was convicted and sentenced to undergo rigorous 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 rigorous imprisonment for a period of three months. Assailing the said judgment of conviction and order of sentence passed, the accused has come up with this appeal.

5. I heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor.

6. The learned counsel for the appellant/accused 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 sampling and sealing the seized contraband scrupulously, leaving room for tampering. According to the counsel, the detecting officer committed a grave procedural irregularity by not affixing the sample seal or specimen impression of the seal in the seizure Mahazar prepared in this case. It is pointed out that, in the absence of a seal in the seizure Mahazar, it cannot be said that the sample of the arrack that got analysed in the laboratory is the very same sample drawn from the contraband seized in this case. The learned counsel further urged that during the examination before the court, the detection officer failed to depose about the nature of the seal used by him in sealing the sample. The learned counsel further submitted that though there is a delay of more than six years inordinate delay in conducting the investigatio