The prosecution must establish a clear link between the seized contraband and the sample tested, including proper sealing, to avoid benefit of doubt to the accused.

O R D E R

This Revision Petition is filed under Sections 397 r/w 401 of Cr.P.C by the accused in S.C. No.80 of 2005 on the file of the Court of Assistant Sessions Judge, Payyanur. As per the judgment dated 18.11.2010 passed by the learned Assistant Sessions Judge, the petitioner was found guilty of the offence under Section 55 (g) of the Kerala Abkari Act and was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of 60 days.

2. The appeal filed by the revision petitioner before the Court of Session Division, Thalassery was partly allowed as per the judgment dated 21.11.2013 passed in Crl.A.No.516 of 2010, confirming the conviction but modifying the sentence by reducing the substantive sentence as rigorous imprisonment for one year. The fine portion of the sentence and the default sentence were maintained by the appellate court. Challenging the legality of the judgments of the courts below, the petitioner/accused is now before this Court.

3. The prosecution case is that, on 18.08.1999, at about 1.30 p.m. the accused was found on the back side of his house in possession of 30 litres of wash. He was arrested by PW2 the preventive officer of Excise Range Office, Alakkod. After complying with the formalities, the accused was brought to the Range Office. He was subsequently produced before the Court. On completion of the investigation, the final report was laid by PW5, the Excise Inspector before the jurisdictional Magistrate Court. After taking cognizance of the offence and complying with the legal formality of providing copies of relevant prosecution records to the accused as provided under Section 207 Cr.P.C, the learned Magistrate committed the case to the Sessions Division under Section 209 Cr.P.C. The case was then made over to the Assistant Sessions Court for trial and disposal.

4. After the appearance of the accused and framing of charge, PWs1 to 5 were examined and Exhibits P1 to P5 documents were marked from the side of the prosecution. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances brought out against him. No defence evidence was adduced from the side of the accused. After hearing both sides the learned Assistant Sessions Judge convicted and sentenced the accused which was confirmed in the appeal with a modification in the substantive sentence alone.

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

6. The learned counsel for the petitioner/accused submitted that though during evidence the detecting officer deposed that the samples drawn from the contraband article as well as the can containing residue were sealed and labelled from the place of occurrence, no such label was seen in the can at the time of evidence. The reaching of the same contraband article seized before the court could not be assured due to the absence of label in the samples and hence the accused is prejudiced. He is entitled for benefit of doubt. On the other hand, the learned Public Prosecutor submitted that this point was argued before the learned Sessions Judge by the accused and it was negated in the impugned judgment passed by the Sessions Judge and hence no interference is needed to the conviction and sentence imposed on the accused.

7. The verification of Ext.P3 Mahazar prepared at the time of detection of the offence by PW2 would show that it is written in that document that 300 ml of sample was collected in a 375 ml bottle and it was sealed and labelled. But no labelling was done in the can containing the remaining contraband article. There is no mention in Ext.P3 that the pr