Prosecution must prove guilt beyond reasonable doubt; failure to comply with procedural requirements undermines the validity of evidence.

J U D G M E N T

This appeal is at the instance of the 2 nd accused in SC No.142 of 2006 on the file of Additional District and Sessions Judge (Ad Hoc) Fast Track Court No.III, Pathanamthitta, challenging his conviction and sentence under Sections 8 (1) and 8(2) of the Abkari Act , as per judgment dated 10/11/2009.

2. The prosecution case is that, on 3/12/2003 PW4-SI of Police, Koodal on getting reliable information, that illicit arrack is being transported in a jeep through Vellamthetti-Padam Kalanjoor public road, himself and police party proceeded to that place and intercepted KL2/F-4476 jeep. That jeep was driven by the 1 st accused, and the 2 nd accused, who is his brother was sitting near the driver seat. On checking that jeep, four cans of 35 litres each full of illicit arrack were seized. The total quantity thus seized was 140 litres. After completing the procedural formalities of sampling, labelling etc, seizure mahazar was prepared and both the accused were arrested. Thereafter, crime No.195/2003 of Koodal police station was registered against them.

3. The 1 st accused absconded and so his case was split up and refiled.

4. After taking cognizance, on appearance of the 2 nd accused before the trial court, charge was framed under Sections 8 (1) and 8(2) of the Abkari Act , to which he pleaded not guilty and claimed to be tried.

5. PWs 1 to 6 were examined, Exts P1 to 13 were marked and MO 1 series were identified, from the side of the prosecution.

6. On closure of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and according to him nothing was recovered from his possession and he was not arrested from the place of occurrence, as alleged by the prosecution. But no defence evidence was adduced.

7. On analyzing the facts and evidence and on hearing the rival contentions from either side, the trial court found the 2 nd accused guilty under Sections 8 (1) and 8(2) of the Abkari Act , and he was convicted and sentenced to undergo rigorous imprisonment for a period of 3 ½ years and to pay fine of Rs.1 lakh, with a default sentence of simple imprisonment for six months. Aggrieved by the conviction and sentence, the 2 nd accused preferred this appeal.

8. Heard learned counsel for the appellant and learned Public Prosecutor.

9. Learned counsel for the appellant would submit that PW4 the detecting officer failed to comply with the procedural formalities, with regard to the seizure of the contraband. He pointed out that in Ext.P5 seizure mahazar, the specimen impression of the seal was not seen affixed. The nature of the seal, used to seal the sample bottles, also is not stated in the mahazar. So according to him, the prosecution failed to prove the genuineness of the sample allegedly seized from the accused at the place of occurrence. Moreover, the forwarding note also is not seen produced or marked from the side of prosecution. That also is a serious circumstance to doubt the genuineness of the sample which was sent for analysis.

10. In Bhaskaran v. State of Kerala [2020 KHC 5296] , this Court held that the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced before court. Moreover, the detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used, shall be mentioned in the seizure mahazar also. In the case on hand, the seizure mahazar will not show the specimen seal or its nature.

11. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court held that, in the absence of convincing evidence as to the production of specimen impression of the seal to the chemical examiner, no evidentiary value can be attached to the chemical analysis report. If the specimen seal is not affixed in the forwarding note, prosecution cann