JUDGMENT

Aggrieved by the judgment dated 17.12.2015 passed by the Additional Sessions Court II, Kasargod, the accused has preferred this appeal. The appellant/accused has been convicted for the offence punishable under Section 55(i) of the Abkari Act and sentenced to undergo rigoros imprisonment for one year and pay fine of Rs.1,00,000/-.

2. The prosecution case is that on

01.02.2013, the appellant/accused was found selling Indian made foreign Liquor in front of a shop bearing door No.XXXII/676 of Neeleswaram Municipality.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(i) of the Abkari Act before the Judicial First Class Magistrate Court – II, Hosdurg. The case was committed to the Sessions Court, Kasargod, 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(i) 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 P12, MO1 series and MO2 series.

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. On the side of the defence, DW1 was examined. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(i) of the Abkari Act, and convicted him thereunder.

6. I have heard Kum.Fida Husna P.P.

representing Sri.Rahul Sasi, the learned counsel for the appellant/accused and Smt.Nima Jacob, the learned Public Prosecutor for the respondents.

7. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. She relied on the following circumstances to substantiate her contentions:

(a) The ofÏcials who handled the sample in the Court were not examined by the prosecution.

(b) The delay in the delivery of the sample by the Excise Guard after receiving the same from the Court to the laboratory was not properly explained.

8. Based on the above circumstances, the learned counsel submitted that the prosecution had miserably failed to establish the link connecting the accused with the contraband substance seized.

9. The alleged seizure was effected on

01.02.2013 by the Excise Inspector, Neeleswaram. The appellant was arrested at the scene of occurrence along with the contraband substance. The detecting ofÏcer had prepared Ext.P1 Seizure Mahazar. He had drawn sample at the scene of the occurrence. The Excise Inspector produced the sample before the Court on 02.02.2013. The Junior Superintendent of the Court received the sample. The bottle containing the sample remained in the possession of the property clerk. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P12, Certificate of Chemical Analysis, shows that the sample was forwarded to the laboratory as per letter dated 02.02.2013 of the Jurisdictional Magistrate. Ext.P12 further shows that the sample was delivered in the laboratory by an Excise Guard by name Sri.Jayarajan on

08.02.2013. The custody of the bottle containing the sample from 02.02.2013 to 08.02.2013 has not been explained by the prosecution. The prosecution has not examined the Excise Guard by name Sri.Jayarajan. In the absence of any contra evidence, this Court has to infer that the bottles containing the sample remained in the possession of Sri.Jayarajan for six days. Non-examination of Sri.Jayarajan is fatal to the prosecution.