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. 2736 OF 2009 AGAINST THE ORDER/JUDGMENT DATED 19.11.2009 IN SC NO.36 OF 2008 OF ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA APPELLANT:

KADAKKARA,S/O.MUTHUVEERAN AGED 52 YEARS, PGP V/52, POWER HOUSE, DIVISION, ATTUKAD KARA, PALLIVASAL ESTATE, PALLIVASAL VILLAGE.

BY ADVS.

T.G.SUNIL (PRANAVAM)

J.OM PRAKASH C.X.ANTONY BENEDICT RESPONDENT:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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 19.11.2009, passed by the

3^rd Additional Sessions Judge (Adhoc-I), Thodupuzha in S.C.No.36/2008, 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 two years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 13.06.2006 at about 4.30 p.m, the accused was found in possession of 950 ml of arrack for the purpose of sale at a place behind the cattle shed situated in Aattukad Kara of Pallivasal Village 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 to 9 and proved Exts.P1 to P10 and MO1 and MO2.

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 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 afÏxed on the bottle containing the sample.

(ii) The various ofÏcials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution.

9. The alleged seizure was effected on 13.06.2006. The detecting ofÏcer had prepared Ext.P1 seizure mahazar. He had drawn the sample at the scene of occurrence. Exhibit P1 seizure mahazar does not contain the nature and the description of the seal stated to have been afÏxed on the bottle containing the sample. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the properties including the sample.

10. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting ofÏcer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced