2024/KER/41566 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 10^TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 CRL.A NO. 1386 OF 2009 AGAINST THE JUDGMENT DATED 01.07.2009 IN SC NO.1320 OF 2006 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT:

AJAYAN, S/O GANGADHARAN, PAROLI VEETTIL, ELATHUR VILLAGE, ERANHIKKAL,, KOZHIKODE.

BY ADV SRI.SUNNY MATHEW RESPONDENT:

STATE OF KERALA THROUGH THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY ADV.

SRI.G.SUDHEER, PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.BABU, J.

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Crl.A.No.1386 of 2009 -------------------------------------------

Dated this the 10^th day of June, 2024 JUDGMENT Aggrieved by the judgment dated 01.07.2009, passed by the Additional District and Sessions Court (Adhoc-II), Kozhikode in Sessions Case No.1320 of 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 one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 21.08.2003 at 2.30 p.m., the accused was found in possession of 7 litres of arrack in a can at Eranhikkal 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. He pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offences.

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

P1 to P6. MO1.

5. After the closure of the evidence on behalf of the prosecution, the 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 the learned counsel appearing for the appellant/accused and the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant/accused challenged 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/accused relied on the non-examination of the various officials who handled the sample during its transit from Court to the laboratory to substantiate his contention.

9. The alleged seizure was effected on 21.08.2003. The properties including the sample, were produced before the Court on 22.08.2008. The sample was received by the Junior Superintendent of the Court and it was forwarded to the laboratory on 23.08.2003 by the Despatch Clerk, which is evident from Ext.P4 copy of the forwarding note. Ext.P5 Certificate of Chemical Analysis shows that the bottle containing the sample reached the laboratory on 23.08.2003 through an Excise Guard by name Sri.M.T.Sekaran.

10. The learned counsel for the appellant contended that the non-examination of the officials who handled the sample during its transit from Court to the laboratory is fatal to the prosecution. The Junior Superintendent of the Court, the Despatch Clerk/Property Clerk and the Excise Guard who deliver