IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 20^TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 CRL.A NO. 894 OF 2009 AGAINST THE JUDGMENT DATED 28.04.2009 IN SC NO.211 OF 2007 OF ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGODE APPELLANT/ACCUSED:

B.BALAKRISHNA SHETTY, AGED 55, S/O.BANDAPPA SHETTY, KANILE HOUSE, BADAJE, BADAJE VILLAGE, KASARAGOD.

BY ADVS.

SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT/COMPLAINANT:

STATE OF KERALA, THE EXCISE INSPECTOR, MANJESHWAR POLICE STATION, WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.

BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.BABU, J.

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Criminal Appeal No.894 of 2009 ---------------------------------------

Dated this the 20^th day of February, 2024 JUDGMENT Aggrieved by the judgment dated 28.04.2009, passed by the Additional Sessions Court (Adhoc-II), Kasaragod in S.C.No.211/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 19.09.2005 at 7.30 p.m, the accused was found in possession of 55 packets each containing 100 ml of arrack at Angadipadavu 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 55(a) 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 55(a) 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 to 4 and proved Exts.P1 to P8.

5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence.

6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to prove that the contraband substance seized at the scene 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) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.

(ii) The detecting officer has not given evidence as to the nature of the seal used.

(iii) The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced.

9. Exhibit P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. There is nothing to show that the specimen of the seal was produced before the Court to ensure the genuineness of the sample produced.

10. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes