JUDGMENT

Aggrieved by the judgment dated 22.07.2011, passed by the Additional Sessions Court-III (Fast Track, Adhoc), Palakkad in Sessions Case No.99 of 2010, accused No.1 has preferred this appeal. Accused No.2 was acquitted and the appellant/accused No.1 was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 25.01.2007 at 10.20 a.m., accused No.1 was found in possession of about 7 litres of arrack at Beevipadi in violation of the provisions of the Abkari Act. Accused No.2 had entrusted the arrack for sale with accused No.1.

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 them for the offence punishable under Section 8(2) of the Abkari Act. They pleaded not guilty to the charges and therefore, they 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 P9, and MOs 1 to 3.

5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder.

6. Heard the learned counsel appearing for the appellant/accused No.1 and the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant/accused No.1 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 No.1 relied on the following circumstances to establish his contentions:-

(i) Ext.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) Though the sample was forwarded to the laboratory on 16.05.2008, it reached the laboratory only on 20.05.2008. There is no satisfactory explanation regarding the custody of the bottles containing the samples, during the interregnum from 16.05.2008 to

20.05.2008.

(iii) The various ofÏcials who handled the sample during its transit from the Court to the Laboratory were not examined.

9. The alleged seizure was effected on 25.01.2007. The detecting ofÏcer had prepared Ext.P1 seizure mahazar at the scene of occurrence to evidence seizure. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been afÏxed on the bottles containing the samples. The detecting ofÏcer has not given evidence as to the nature of the seal used. There is no evidence to show that the specimen of the seal was produced before the Court at the time of production of sample to ensure its genuineness.

10. The prosecution has not given any evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 16.05.2008 of the Judicial First Class Magistrate Court, Ottapalam. Ext.P8 further shows that the bottles containing the samples reached the laboratory only on 20.05.2008 through the Police Constable No.3755. The sample remained in the custody of the Property Clerk of the Court from 25.01.2007 to