Prosecution must establish an unbroken chain of custody for evidence in substance abuse cases to link the evidence back to the sample taken from the accused.

ORDER

Revision petitioner is the accused in S.C.No.812 of 2014 on the file of the III Additional Assistant Sessions Court, Kozhikode registered alleging commission of offences punishable under Sections 8 (1) and 8(2)

of the Kerala Abkari Act .

2. The prosecution case is that on 31.10.2012 at about 11.00 a.m. at a place in front of the house of one Mr. Malayil Moideen Koya on the side of the road called Karattu Thazham – Poloor temple road in Kuruvattur amsom Paloor desom of Kozhikode Taluk, the accused/revision petitioner was found possessing and transporting 10 litres of illicit arrack in a white can having capacity of 10 litres and thereby the revision petitioner/accused has committed the alleged offences.

3. The prosecution in support of their case examined PW1 to PW4 and marked Exts.P1 to P7 and identified MO1.

4. The trial court on consideration of the evidence adduced found that the accused is guilty of the offences under Sections 8 (1) and 8(2) of the Abkari Act and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month. It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.466 of 2015 before the III Additional Sessions Court, Kozhikode, the same was disposed of confirming the conviction and sentence imposed by the trial court.

5. Learned counsel appearing for the revision petitioner has raised the following contentions. He relying on Ext.P5 forwarding note and Ext.P7 chemical analysis report would submit that in Ext.P5 the name of the Excise Guard through whom the alleged sample was sent for chemical analysis is not mentioned. Yet another contention raised by the learned counsel for the revision petitioner is that Ext.P5 does not reveal the date on which the sample was despatched for chemical analysis. A perusal of Ext.P7 would reveal that the same does not mention the date of the letter bearing No.PR 412/12 through which the sample was sent from the court to chemical analysis laboratory. It is mentioned in Ext P7 that the sample was received in the laboratory only on 27.03.2014. Admittedly, the occurrence was on 31.10.2012 and the sample was produced before the court on 31.10.2012 itself. In light of the same, the contention of the learned counsel for the revision petitioner is that there is no evidence adduced on the side of the prosecution either by examining the Property Clerk or the Guard through which the sample was sent for chemical examination to prove the date of despatch of the sample and the safe custody of the same. Petitioner relies on the judgment in Viswanadhan v. State of Kerala , 2016 (3) KHC 38, and also the judgment inMajeedkutty v. The Excise Inspector, Kollam Range, 2015 (1) KHC 424 , in support of his contention.

6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court inBaburaj v. State of Kerala, 2021 (6) KLT 416, has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held inSathi v. State of Kerala, 2007 (1) KLT SN 57 . In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt.

7. In Ext P5 forwarding note, the name of the Excise Guard through whom the alleged sample was sent for examination is not mentioned. This court inJayakumar v. State of Ker