The prosecution must establish the legality of search and chain of custody for evidence beyond reasonable doubt; failure results in acquittal.

ORDER :

M.B. Snehalatha, J.

Revision petitioner herein assails the judgment of conviction and order of sentence passed against him for the offence punishable under Sections 55(a) and 55(i) of the KERALA ABKARI ACT .

2. Prosecution case is that on 22.4.2015 at about 6.30 pm, in the lean to shed attached to ‘New Lakshmi Hotel’ of Mannur Grama Panchayat, the revision petitioner/accused was found engaged in unauthorised sale of Indian Made Foreign Liquor (for short IMFL) and was found in possession of 2.250 liters of IMFL. Accused thereby committed the offences punishable under Sections 55(a) and 55(i) of the ABKARI ACT .

3. Accused pleaded not guilty to the charge. To substantiate the prosecution case, prosecution examined Pws 1 to 5 and marked Exts.P1 to P12 and MO1 series. No defence evidence was adduced by the accused.

4. After trial, the trial court found the accused guilty under Sections 55(a) and 55(i) of ABKARI ACT and he was convicted and sentenced to undergo imprisonment for a period of one year each and to pay a fine of Rs.1 lakh each under Sections 55(a) and 55(i) of the ABKARI ACT . In default of payment of fine, imprisonment for four months each was also ordered. The appeal filed by the revision petitioner/accused was dismissed by the Sessions Court by confirming the conviction and sentence.

5. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor.

6. The learned counsel appearing for the revision petitioner/accused contended that the trial court went wrong in convicting the accused for the offences under Sections 55(a) and 55(i) of the ABKARI ACT ; that the prosecution failed to prove the seizure of 2.250 litres of IMFL from the possession of revision petitioner/accused and also failed to prove the sale of Indian made foreign liquor by him. It was contended that the alleged search and seizure were conducted illegally without complying the mandatory provisions and in violation of Sections 30 and 31 of ABKARI ACT and therefore accused is entitled to get an order of acquittal. Further, it was contended that there is an unexplained delay in producing the samples allegedly drawn from the contraband before the Chemical Examiner's Laboratory and therefore the prosecution failed to establish that the sample was produced before the laboratory in a tamper-proof condition and accordingly no reliance can be placed on the chemical analysis report.

7. Per contra, the learned Public Prosecutor supported the findings in the impugned judgment and contended that the prosecution has succeeded in establishing that the accused was found selling IMFL in the lean-to shed attached to New Lakshmi Hotel by possessing 2.250 litres of IMFL and therefore there are no grounds to interfere with the judgment of conviction and order of sentence.

8. In view of the rival submissions, the point for consideration in this revision is whether the conviction and sentence for the offences under Sections 55(a) and 55(i) of the ABKARI ACT warrants any interference by this Court.

9. PW1 was the Preventive Officer of Excise Range, Parali. According to him, on 22.4.2015 at around 6.30 pm, acting on a tip-off regarding the unauthorised sale of IMFL, the excise party led by him reached at the lean to shed attached to the hotel named New Lakshmi and conducted search after preparing and sending the memorandum of search to the court by post. His further version is that when he reached there, accused was found holding a plastic bottle containing liquor and PW3 Mohandas was found holding a glass tumbler. Upon seeing the excise officials, though PW3 who was holding the glass tumbler made an attempt to flee from there, one of the excise officials held PW3. Furt