In Abkari cases, the failure to produce the forwarding note and the omission of the specimen seal in the seizure mahazar breaks the chain of custody, creating reasonable doubt regarding the identity of the contraband analyzed, thus entitling the accused to an acquittal.

ORDER :

JOBIN SEBASTIAN, J.

This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Court, Mavelikkara, as per judgment dated 30.11.2009 in S.C. No. No.386/2008, which was confirmed in appeal by the Additional Sessions Court, Fast Track Court (Ad hoc), Mavelikkara, by judgment dated 31.01.2011 in Criminal Appeal No. No.559/2009. The revision petitioner herein is the sole accused in the said case.

2. The prosecution case is that, on 30.09.2005 at about 6.30 P.M., the accused was found in possession of 1.5 liters of arrack, in a plastic can having a capacity of five liters, at Olavakode in front of the house of one Mohanan Pillai, in contravention of the provisions of the Abkari Act. Thus, the accused is alleged to have committed an offence punishable under Section 8(2) r/w 8(1) of the .

3. During trial, the prosecution had examined five witnesses as PW1 to PW5 and marked Exts. P1 to P6. MO1 was also identified and marked. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C., during which he denied all the incriminating circumstances brought out in evidence against him. Since the court found that it was not a fit case for acquittal under Section 232 of the Cr.P.C., the accused was called upon to enter upon his defence and adduce evidence, if any, in support thereof. On the defence side, one witness was examined as DW1. However, the defence produced no documentary evidence.

4. Upon appreciation of the evidence, the learned Assistant Sessions Judge found the accused guilty of the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of the fine, he was directed to undergo simple imprisonment for a further period of six months.

5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 559/2009 before the Sessions Court, Alappuzha. The learned Additional Sessions Judge, who heard the appeal, allowed the same in part and, without altering the finding, the sentence was modified and the accused was ordered to undergo rigorous imprisonment for three months for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and to pay a fine of Rs.1,00,000/-. In default of payment of the fine, the accused was directed to undergo simple imprisonment for three months. Aggrieved thereby, the accused has filed the present revision petition.

6. Heard Sri George Varghese, the learned counsel for the revision petitioner, and Smt. Anima M., the learned Public Prosecutor. The records were also perused.

7. The learned counsel for the revision petitioner submitted that the revision petitioner is wholly innocent of the allegations levelled against him and that both the trial court and the appellate court failed to appreciate the evidence in its proper perspective. According to the learned counsel, the revision petitioner has absolutely no connection with the contraband allegedly seized in the case and has been falsely implicated on mere surmises and conjectures. It was further contended that the search and seizure procedures were not conducted in a foolproof manner, thereby leaving ample scope for manipulation and tampering. The absence of the specimen sea