Procedural defects in the collection and handling of evidence undermine the prosecution's case, necessitating acquittal when the chain of custody is not established.

JUDGMENT :

JOHNSON JOHN, J.

The appellants are accused Nos. 1 and 2 in S.C. No. 704 of 2007 on the file of the Additional District and Sessions Judge, (Adhoc-III), Kasaragod and they are challenging the conviction and sentence imposed on them for the offence under Section 8(2) of the ABKARI ACT .

2. The prosecution case is that on 02.10.2006, at about 8.15 p.m., when the Sub Inspector of Kumbla Police Station and party inspected the autorickshaw driven by the first accused along with the second accused as passenger at Mukkarikandam, it is found that the autorickshaw contained 3000 packets of arrack containing 100 ml. each in 6 plastic sacks and the accused are thereby alleged to have committed the offence punishable under Section 8(2) of the ABKARI ACT .

3. The trial court, after framing charge, examined PWs 1 to 6 and marked Exhibits P1 to P8 from the side of the prosecution and no evidence adduced from the side of the defence.

4. After trial and hearing both sides, the trial court found both the accused guilty of the offence under Section 8(2) of the ABKARI ACT and sentenced them to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for three months.

5. Heard Smt. Saipooja, the learned counsel for the appellants and Smt. Hasnamol N.S., learned Public Prosecutor.

6. The learned counsel for the appellants argued that PWs 2 and 3, the independent witnesses examined by the prosecution, turned hostile and a perusal of Exhibit P2, seizure mahazar, and Exhibit P7, property list, would show that the specimen impression of the seal used is not affixed in the seizure mahazar and property list. It is argued that the mandate of Section 53A of the ABKARI ACT is not complied in this case and that there is also violation of Section 38 of the ABKARI ACT and that the prosecution has not complied with the procedural requirements for ensuring tamper proof collection of samples and production of the same in the Chemical Examiner's Laboratory in a fool proof condition and therefore, the appellants are entitled for the benefit of reasonable doubt.

7. The learned Public Prosecutor argued that the evidence of PW6, Sub Inspector who detected the offence, is supported by the evidence of PW1, Police Constable, and Exhibit P5, report of the chemical analyst, would show that ethyl alcohol was detected in the samples and there is no reason to interfere with the findings in the impugned judgment. 8. PW6 is the Sub Inspector who detected the offence and PW1 is the Police Constable who accompanied PW6 and regarding the occurrence, they were deposed in accordance with the prosecution case. PWs 2 and 3, the independent witnesses examined by the prosecution, turned hostile to the prosecution stating that they have not witnessed the alleged occurrence.

9. According to PW6, after arresting accused Nos. 1 and 2, he took samples of the contraband in two bottles of 375 ml. capacity. Even though, PW6 stated that he affixed label and sealed the sample bottles by using the seal of the SHO, he has not deposed anything regarding the nature of the seal used. It is pertinent to note that the specimen impression of the seal is not seen affixed in Exhibit P2, seizure mahazar, or Exhibit P7, property list.

10. The prosecution has no case that representative samples of the contraband liquor were drawn in the presence of the Magistrate as required under Section 53A(2)(c) of the ABKARI ACT . Section 53A of the ABKARI ACT , inserted by Act 1 of 2003 with effect from 03.09.2002, reads thus:

“53A. Disposal of seized liquor, intoxicating drugs or articles. - (1) Notwithstanding an