Prosecution must establish a clear link between the substance seized and the sample tested in drug-related offenses to secure a conviction.

JUDGMENT

Aggrieved by the judgment dated 13.05.2009, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No. 494/2006, the accused has preferred this appeal. The appellant 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 25.03.2006 at

2.45 p.m., the accused was found in possession of 20 litres of arrack at Thrikkaipetta, 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 . 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 to 5 and proved Exts.P1 to P7, 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. On the side of defence, DWs 1 and 2 were examined. 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.N.J.Antony, 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 prosecution has miserably 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 relied on the following circumstances to substantiate his contentions:

(1) The delay in the production of properties including the sample has not been satisfactorily explained by the prosecution.

(2) The prosecution failed to establish the genuineness of the sample produced before the Court.

(3) There is every possibility that the sample subjected to chemical analysis was not the one drawn from the contraband allegedly seized from the possession of the accused.

9. The alleged seizure was effected on 25.03.2006.

PW3, the Excise Range Inspector, Kalpetta, detected the offence. According to PW3, he had arrested the accused along with the contraband substance from the scene of occurrence and that he had drawn the sample from the contraband seized. The properties including the sample were produced before the Court only on 27.03.2006, which is evident from Ext.P4 Property List. The prosecution has not offered any explanation for the delay in the production of the properties including the sample.

10. In Ravi v. State of Kerala [2011 (3) KHC 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows:

“8. We, therefore, answer the reference as follows:

1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”

(Emphasis supplied)

I