JUDGMENT

Aggrieved by the judgment dated 29.08.2006, passed by the Assistant Sessions Court, Kollam in Sessions Case No.1128/2003 the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 05.01.1998 at about 5.30 p.m., the accused was found in possession of 4 litres of arrack at Kunnathoor, in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8 (2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 and 6 and proved Exts.

P1 to P4 and MOs 1 and 2.

5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section

8(2) of the Abkari Act and convicted him thereunder.

6. Heard Sri. Johnson Gomez, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The judgment of conviction and sentence is challenged on the ground that the petitioner failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:

(i) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been afÏxed on the bottle containing the sample.

(ii) The specimen of the seal used by the detecting ofÏcer was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory.

(iii) Various ofÏcials who were handled the sampled during its transit from the Court to the Laboratory were not examined.

9. The alleged seizure was effected on 05.01.1998. The detecting ofÏcer had prepared Ext.P1 seizure mahazar at the scene of occurrence to evidence seizure. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been afÏxed on the bottle containing the sample. The detecting ofÏcer has not given evidence as to the nature of the seal used. There is no evidence to show that the specimen of the seal was produced before the Court at the time of production of sample to ensure the genuineness of the sample produced. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification.

10. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P4 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 10.06.1998 of the Judicial First Class Magistrate Court, Sasthamcotta. Ext.P4 further shows that the bottle containing the sample reached the laboratory only on 11.06.1998 through an Excise Guard by name Baby John. The sample remained in the custody of the Property Clerk till 10.06.1998. The sample was received by the Excise Guard concerned from the Court on 10.06.1998. Neither the Property Clerk of the Court nor the Excise Guard who delivered the sam