IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 CRL.A NO. 1177 OF 2007 AGAINST THE ORDER/JUDGMENT DATED IN SC NO.328 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI APPELLANT/ACCUSED:

P.K.CHANDRAN S/O UNNI NAGAN AYYANATTU VEEDU, VILAYIL, PARAPPUR, MALAPPURAM DISTRICT.

BY ADV SRI.BABU S. NAIR RESPONDENT/STATE:

STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, MANJERI, MALAPPURAM DISTRICT - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

SRI.G.SUDHEER, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Aggrieved by the judgment dated 19.6.2007, passed by the Court of Session, Manjeri (Fast Track Court No.II) in S.C.No.328/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 26.8.2005 at about 6 p.m., the accused was found in possession of 14 litres of wash prepared for distillation of arrack at Parappur 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(g) 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(g) 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 5 and proved Exts.P1 to P6 and MO1.

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 challenges the judgment of conviction and sentence on the ground that the prosecution 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 submitted that the inordinate delay in the production of the sample before the Court makes the genuineness of the same doubtful. The learned counsel relied on the judgment in Ravi v. State of Kerala [2011 (3) KLT 353] in support of his contentions.

9. The alleged seizure was effected on 26.8.2005. The detecting ofÏcer had drawn the sample from the contraband seized at the scene of occurence. Ext.P5 copy of the forwarding note shows that the bottle containing the sample was produced before the Court only on 13.10.2005. The propety list has not been produced and marked. In Ravi v. State of Kerala [2011 (3) KLT 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 Abkari Act 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